DISTRICT CONSUMER DISPUTES REDRESSAL FORUM  PALAKKAD

Dated this the 11^th  day of  November  2015

Present   : Smt.Shiny.P.R. President

               : Smt.Suma.K.P.  Member                                                    Date of filing: 31/03/2012   

                                                   (C.C.No.58/12)           

Sunil Balagopal,

17/394, Kamjam East Yakkara,

Kunnathurmedu Post,

Palakkad – 678 013                                                        -           Complainant

(By Adv.P.Anil) 

Vs

Managing Partners

1.S.Gopinathan Nair &

2. Biju Antony,

Ambas Properties,

3/516, Adam Plaza,

Municipal Junction,

North Paravoor,

Ernakulam – 683 513                                                     -           Opposite parties

(By Adv.John John)

O R D E R

By Smt.Shiny.P.R. President.

Complainant in CC 70/12 filed IA 268/12 for  joint  trial of all connected case. In      CC.203/12 opposite party filed I.A.135/13 to hear all the connected case with this complaint. Both applications are allowed. 

Brief facts of complaint.

The predecessor in the interest of the complainant Suresh Ezhuvath had brought 1.22% undivided share over 72 cents of land situated in Sy.No 4111 to 4115 of  Palakkad III Village, Palakkad Taluk from Opposite party as per Sale deed No. 8090/2007 of SRO Palakkad after paying valid sale consideration. It was further covenanted in the said sale deed that apart from the afore stated share over the land a flat admeasuring  971 sq.ft would be built by the opposite parties for and on behalf of the purchaser at the cost and expenses of the purchaser. The costs of the construction was mutually arrived at by both parties and a payment schedule was also drawn up.

The complainant submit that in the midst of these developments, the predecessor in interest Sri.Suresh Yezhuvath transferred his right, title and interest obtained above, in the name of the complainant vide sale deed No.3335/2009 of SRO Palakkad for valid consideration. Both complainant and his predecessor-in-interest had strictly complied with the time schedule stipulated in the time schedule. Contrary to above stipulations in the agreement the opposite party even forced to pay escalation cost at the instance of the opposite party. The opposite parties have promised that the construction of the flat would be completed by 28-12-2008.

The opposite party has handed over the flat to the complainant only on 1^st week of September without obtaining the electricity, water connection and house number etc. Complainant submitted that the legally sanctioned building plan has been given a complete   go-by and amenities promised as per brochure had not been provided even after 40 months from the stipulated date of completion of the construction. Moreover Opposite party has built 64 flats instead of 60 flats with view to make unjust enrichment. It would add burden to the common amenities and right of the flat owners including the complainant. The opposite party sold a portion of the land, which was earmarked as common recreational area and car parking are under Block III. The complainant also submits that car parking, swimming pool, gymnasium fitments, maintenance room, children’s play ground are not provided. Lift provided does not conform to standards and size specified in the brochure and plan, i.e. length and width of 6 feet 3 inches was promised, instead lifts of lesser size have been installed. Fully secured compound wall not provided on the southern side of the compound. As a result potable water tanks facing and situated adjacent to main state high way, remains exposed to stray animals and strangers.16 feet wide two way drive main pathway not provided. Burglar alarm not installed. Door and window frames are made of country wood, instead of teakwood frames as promised. Kotah stone flooring not done on emergency exit stair cases. On the common corridors where the Kotah stones have been laid, it has not been polished or cleaned. Even though three bore wells have been dug, pumps and motors fitted only in one bore well. Market rent promised during the period of delay in handing over flat has not been given. The flat was supposed to be handed over on 28-12-2008 but was handed over only on 1^st week of September without obtaining necessary statutory clearance. Therefore the complainant is entitled to get the market rent @ Rs 4000/- per month for the period of said 20 months with 12% interest

     The opposite party has not handed over the check list to satisfy and convince the complainant that amenities as promised as provided for. The services rendered by the opposite party are far from standards and they have adopted unfair trade practice to make illegitimate gains. By the act of opposite parties complainant sustained severe mental hardship and agony. Hence the complaint. Complainant prays for an order.

1.  Directing opposite parties to pay Rs.144000/- as market rent with interest for 20 months, Rs.150000/- for the burden caused by the construction of additional 4 flats and Rs.200000/- for the mental agony suffered to the complainant.
2. Directing the opposite party to complete the construction of amenities in accordance to the specifications made in the brochure and the original plan EJBR/814/06-07/PW4 dated 9-2-2007 sanctioned by the local authority and
3. Cost of  the complaint .

1^st Opposite party filed version contending the following.

The complaint is not maintainable in law. The complainant does not come under the definition of the Consumer Protection Act. The complaint is barred by limitation. Since there is no contract between the complainant and this opposite party, the complainant is not entitled to file complaint before this Forum. The opposite party admitted the Sale deed No.8090/2007 of SRO Palakkad executed  to Suresh Yezhuvath. After execution of sale deed, on 28-3-2007 an agreement was executed between the Suresh Yezhuvath and this opposite party to construct a flat with the extent of 970 Sq. Ft.This opposite party has complied with all the conditions and constructed a flat for the complainant as per the terms of the agreement. It is specifically stated in the said agreement that the agreement is to recall the totality of understanding and terms agreed between the parties and that the agreement supersedes all prior representation, communications and understanding that may have existed between the parties as regards the subject matter of this agreement including a matter with regard to amenities, completion date, specifications and the like. Opposite party submitted that after the execution of this agreement, the said agreement alone will prevail and that whatever understating was made earlier is having no relevance. The Brochure published the 1^st opposite party was intended for giving a general idea about the being constructed. At the time of preparation of the brochure the cost proposed by the opposite party was Rs.1600/- per Sq.Ft. After the publication of the brochure, a group of persons numbering about 40, who were the staff of Federal Bank and their relatives approached the 1^st opposite party and negotiated the purchase with opposite party. They bargained on the cost and suggested certain measures reducing the cost and incorporating those suggestions, the agreement was prepared. Cost was reduced to Rs.1150/- per sq.ft. on the basis of the deviations made from the brochure. The agreement dated 28-3-2007 executed between the Suresh Yezhuvath and the 1^st opposite arty is a comprehensive one and 1^st opposite party is liable to follow the conditions of the said agreement.

2.         Opposite party submitted that the constructions of the flat was over by the month of August 2010.They admitted that there are some delay in completing the construction but it was not due to the deficiency or negligence on the part of this opposite party. There was unexpected delay in getting necessary permissions and licenses from the official authorities and the said fact has resulted in the delay in completing the construction. Moreover amendments were made in the Municipality Building Rules in the year 2007 which lead to changes in the building plan on various counts and that also lead to the delay. The Federal Fort Residents Association, body of the flat owners including the complainant, had taken note of the delay occurred due to unforeseen causes and has condoned the delay and had approved the acts of this opposite party. The General body meeting of the Association held on 9-12-2008 took note of the reasons for the delay and the period for completion of construction was extended to 31-3-2009. Later also time was extended periodically by the Association. The application for NOC was sanctioned after 7 months of its submission. More over the stoppage of sand mining, lorry strike which prolonged for more than 3 months, prolongation of monsoon for a long period in 2008 also resulted in the delay of completion of the work. The delay was not willful. The complainant was approved in time reading the causes for delay and she had approved the same.

3.There was no agreement between the complainant and this opposite party that this opposite party will obtain the electric connection, water connection and house number. It is the duty of the complainant to avail the water connection, electric connection, power cable, electricity meter and deposit along with department charges.  The first opposite party has no liability to provide such services. It is specifically stated in clause 6(a)of the agreement.

4.    Though the number of flats was given as 60 in the brochure the 1^st opposite party had obtained the permission for 64 flats as per the building plan and permit. The 1^st opposite party has got right to add and reduce the number of apartments in the complex as per agreement.

5.         It was decided in the general body meeting of Federal Fort Residents Association held on 9-12-2008 as Decision No.3 that an area of around 2000 sq.ft on ground floor facing the PWD road of 3^rd block will be marked for commercial area to be utilized by M/s. Ambas properties for running a supermarket or department store. It was pursuant to this decision that the 1^st opposite party constructed a commercial area but for the construction of the said commercial area land ear marked as common recreational area and car parking area was not utilized.

6.      The complainant has provided with stilt car parking facility. Construction work of the roofing of the 10 covered car parking could not be completed only due to a suit filed by the Federal Fort Residents Association before the Munsiff court as O.S 545/2011. All the materials for the construction of the covered car parking arranged at the place and the work can be completed in a couple of days.

7.         As per the decision No.2 of the Federal Fort Residents Association taken in general body meeting swimming pool was not constructed as they were not ready and willing to meet the huge recurring maintenance expenses for swimming pool. Moreover swimming pool was not part and parcel of the common amenities as provided in the agreement.

8.         All the necessary arrangements for the gymnasium were provided by this opposite party. If the complainant wishes to have any particular fitment, this opposite party shall provide if it is reasonable.

9.         Maintenance room was not agreed to be provided by this opposite party in the agreement.  Anyhow the space provided in the office room is now being utilized for the said purpose.

10.Children’s play area is provided which is available between Block No.1 and Block No II.

If any improvement is to be made therein it is to be done by Owners Association.

11.Two lifts are provided in Block No.I, each for 6 persons and one lift each is provided in Block No II & III capable of carrying 10 persons. Those are more than sufficient to cater to the needs of the residents. There was no stipulation in the agreement to provide lifts of any particular measurement.

12.Fully secured compound wall is provided on the all four sides. The potable water tanks facing and situated adjacent to main state highway is not remaining exposed to stray animals and strangers, as alleged.

13.1^st opposite party  has actually provided 16 feet wide pathway .

14.  Burglar alarms are provided though there is no such condition as per the agreement

15. Door and window frame are actually made of imported Pincoda more acceptable and better quality as accepted by the Managing committee of Federal Fort Residents Association. There was no promise to provide teak wood frames in the agreement. The agreement is to provide door frame of country wood alone.

16.Only polished kotah stones are used in the common corridors.

17.  Open well is available in the property and instead of one bore well the 1^st opposite party has actually dug three bore wells. The water from one bore well is sufficient enough to cater to the needs of the residents.

18.Even though there is no stipulations for fixing solar water heater in the agreement, 1^st opposite party has made provisions for fixing the solar water heater. Owners association can fix it if found necessary.

19.There was no promise for market rent during the period of delay in handing over the flat.

Each and every point of construction had been checked by the complainant along with this opposite party and he satisfied of the perfect completion of the construction work. All the facilities and amenities stipulated in the agreement has been provided and the complainant had been perfectly satisfied, till recently. There is no deficiency in service and unfair trade practice. Hence the complainant is not entitled to get any amount of compensation for this.

1^st  opposite party filed additional version stating that as per resolution passed by the General Body meeting of Federal Fort Residents Association each and every allottees were directed to pay  an amount of Rs.100 per square feet over and above the agreed amount rate as per the individual agreement to M/s Ambas properties and 50% of increased rate is to be paid before 1^st week of January 2009 and the balance 50% is to be paid before 1^st week of March 2009 and it was also decided to  that there will be no change in payment schedule as per the individual agreement.  Since the flat purchased by the predecessor interest of the complainant Suresh Yezhuvath is having a total area of 971 sq.ft the predecessor in the interest is liable to pay an amount of Rs.97100 /-towards the additional payment as per the above said resolution. The complainant has to pay an amount of Rs.97100/- towards the additional payment as per the above said resolution. The complainant paid an amount of Rs.50000/- towards additional payment on 2-1-2012.The complainant failed to pay the balance amount of Rs.47100/- towards the additional payment till this date. This is only due to the negligence on the part of complainant. The complainant filed the complaint to evade from the said payment of Rs.47100/-.  As per the agreement apartment shall be delivered to the allottee within 15days from the completion or after receipt of the entire payment as provided herein from the allottee, whichever is earlier. Even though complainant failed to remit the entire payment, this opposite party handed over the key to the complainant as and when the construction was completed.  Therefore the complaint is liable to be dismissed.

The contention of the 2^nd opposite party is that 2^nd opposite party has retired from the partnership firm as early on 15-6-2011 and there was a reconstituted partnership deed. This opposite party is an unnecessary party to the complaint and there is no prima facie cause of action against this opposite party. The total claim is nothing but a unadultered falsehood. There is no deficiency or unfair trade practice on the part of 2^nd opposite party. Hence the complaint is liable to be dismissed with cost of this 2^nd opposite party.

Complainant, 1^st and 2^nd opposite parties filed their respective proof affidavits. Ext.A1 to A4, A36 and 37   are marked from the side of complainant. Ext.B1 is marked from the side of the opposite party. Complainant was cross examined as PW1.

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM  PALAKKAD

Dated this the 11^th  day of November   2015

Present   : Smt.Shiny.P.R. President

               : Smt.Suma.K.P.  Member                                                 Date of filing: 12/04/2012   

                                                  (C.C.No.68/2012)       

Raji.R

D/o.A.Ramachandran,

Oasis Chembalode,

Chandranagar Post,

Palakkad – 678 007                                                       -           Complainant

(By Adv.P.Anil) 

Vs

Managing Partners

1.S.Gopinathan Nair &

2. Biju Antony,

Ambas Properties,

3/516, Adam Plaza,

Municipal Junction,

North Paravoor,

Ernakulam – 683 513                                         -           Opposite parties

(By Adv.John John)

O R D E R

By Smt.Shiny.P.R.  President.

Brief facts of complaint.

Complainant had purchased 1.71% undivided rights and interest over 72 cents (1.23 cents) of land situated in Sy.No 4111 to 4115 of  Palakkad III Village, Palakkad Taluk from Opposite party as per Sale deed No.6047/2007 of SRO Palakkad after paying valid sale consideration. It was further covenanted in the said sale deed that apart from the afore stated share over the land a flat admeasuring  1360 Sq.Ft. would be built by the opposite party for and on behalf of the purchaser at the cost and expenses of the purchaser. Cost of the said construction was mutually arrived at and a payment schedule was also drawn up. Hundred percentage payment had been paid . The opposite party has handed over the same to the complainant only on September 2010 without obtaining the electricity, water connection and house number. Complainant further submitted that the legally sanctioned building plan EJBR /814/06-07/PW4 dated 9-2-07 has been given a complete go-by and amenities promised as per brochure had not been provided even after 40 months from the stipulated date of completion of the construction. Opposite party has built 64 flats instead of 60 flats with view to make unjust enrichment. It would add burden to the common amenities and right of the flat owners including the complainant. The opposite party sold a portion of the land, which was earmarked as common recreational area and car parking area under Block III. The complainant also submits that  car parking area, swimming pool, gymnasium fitments, maintenance room, children’s play ground are not provided. Lift provided does not confirm to standards and size specified in the brochure and plan. Fully secured compound wall not provided on the southern side of the compound. 16 feet wide two way drive main pathway not provided. Burglar alarm not installed.  Door and window frames are made of country wood, instead of teakwood frames as promised. Kotah stone flooring not done on emergency ext stair cases. On the common corridors where the Kotah stones have been laid, it has not been polished or cleaned. Even though three bore wells have been dug, pumps and motors fitted only in one bore well. Apart from this solar water heater and rain water harvesting pit are also not provided. Market rent promised during the period of delay in handing over flat has not been  given. The flat was supposed to be handed over on 29-12-2008 but was given to the complainant only on September 2010. Therefore the complainant is entitled to get the market rent @ Rs.6000/-  per month  along with 12 % interest for the period of said 20 months. The services rendered by the opposite party are far from standards and they have adopted unfair trade practice to make illegitimate gains. By the act of opposite parties complainant sustained severe mental hardship and agony. Hence the complaint. Complainant prays for an order.

1. Directing opposite parties to pay as damages Rs.1,44,000/- for market rent for 20 months with interest, Rs.1,50,000/- for burden caused by the construction of additional 4 flats and Rs.2,000,00/- for the mental agony suffered  to the complainant.
2. Directing the opposite party to complete the construction of amenities in accordance to the specifications made in the brochure and the original plan EJBR/814/06-07/PW4 dated 9-2-2007 sanctioned by the local authority and
3. Cost of the complaint .

1^st opposite party filed version contending the following.

1. The complaint is not maintainable in law. The complainant is not a consumer under the definition of the Consumer Protection Act. The complaint is barred by limitation.
2. The opposite party admitted the Sale deed No.6047/2007 of SRO Palakkad. After execution of sale deed on 27-3-2007 an agreement was executed between the complainant and this opposite party to construct a flat with the extent of 1360 Sq. Ft. It is specifically stated in the said agreement that this agreement is to recall the totality of understanding and terms agreed between the parties and that the agreement supersedes all prior representation, communications and understanding that may have existed between the parties as regards the subject matter of this agreement including a matter with regard to amenities, completion date, specifications and the like. Opposite party submitted that after the execution of this agreement, the said agreement alone will prevail and that whatever understating was made earlier is having no relevance. At the time of preparation of the brochure the cost proposed by the opposite party was Rs.1600/- per Sq. Ft. After the publication of the brochure, a group of persons numbering about 40, who were the staff of Federal Bank and their relatives approached the 1^st opposite party and negotiated the purchase with opposite party. They bargained on the cost and suggested certain measures reducing the cost and incorporating those suggestions, the agreement was prepared. Cost was reduced to Rs.1150/- per Sq.Ft. on the basis of the deviations made from the brochure. The agreement dated 27-3-2007 executed between the complainant and the 1^st opposite arty is a comprehensive one and both the parties are liable to follow the condition of the said agreement.
3. Opposite party submitted that the constructions of the flat was over by the month of August 2010.They admitted that there are some delay in completing the construction but it was not due to the deficiency or negligence on the part of this opposite party. There was unexpected delay in getting necessary permissions and licenses from the official authorities and the said fact has resulted in the delay in completing the construction. Moreover amendments were made in the Municipality Building Rules in the year 2007 which led to changes in the building plan on various counts and that also led to the delay. The Federal Fort Residents Association, body of the flat owners including the complainant, had taken note of the delay occurred due to unforeseen causes and has condoned the delay and had approved the acts of this opposite party. The General body meeting of the Association held on 9-12-2008 took note of the reasons for the delay and the period for completion of construction was extended to 31-3-2009. Later also time was extended periodically by the Association. The application for NOC was sanctioned after 7 months of its submission. More over the stoppage of sand mining, lorry strike which prolonged for more than 3 months, prolongation of monsoon for a long period in 2008 also resulted in the delay of completion of the work. The delay was  not willful.
4. There was no agreement between the complainant and this opposite party that this opposite party will obtain the electric connection, water connection and house number. It is the duty of the complainant to obtain the water connection, electric connection and house number on their own  cost. It is specifically stated in clause 6(a)of the agreement.
5. Though the number of flats was given as 60 in the brochure the 1^st opposite party had obtained the permission for 64 flats as per the building plan and permit. The 1^st opposite party has got right to add and reduce the number of apartments in the complex as provided in the agreement.
6. It was decided in the general body meeting of Federal for residents association held on 9-12-2008 as Decision No.3 that an area of around 2000 Sq.ft on ground floor facing the PWD road of 3^rd block will be marked for commercial are to be utilized by M/s Ambas properties for running a super market or department store. It was pursuant to this decision that the 1^st opposite party constructed a commercial area but for the said commercial area land earmarked as common recreation area and car parking area was not utilized.
7. This opposite party has provided all the amenities as given in the agreement. Complainant is provided with stilt car parking facility.
8. As per the decision No.2 of the Federal fort Residents association taken in general meeting swimming pool was not constructed. Moreover swimming pool was not part and parcel of the common amenities as provided in the agreement.
9. All the necessary arrangements for the gymnasium were provided by this opposite party.
10. Maintenance room was not agreed to be provided by this opposite party in the agreement executed between the complainant and first opposite party.  Anyhow the space provided in the office room is now being utilized for the said purpose.
11. Children’s play area is provided which is available between Block No.1 and Block No. II. If any improvement is to be made therein it is to be done by Owners Association.
12. Agreement provides for lifts and staircase alone. Two lifts are provided in Block No. I, each for 6 persons and one lift each is provided in Block No.II & III capable of carrying 10 persons. Those are more than sufficient to cater to the needs of the residents. There was no stipulations in the agreement to provide lifts of any particular measurement.
13. Fully secured compound wall is provided on the all four sides. The potable water tanks facing and situated adjacent to main state highway is not remaining exposed to stray animals and strangers, as alleged.
14. 1^st opposite party has provided 16 feet wide pathway which is two way.
15. Burglar alarms are provided though there is no such condition as per the agreement
16. Door and window frame are actually made of imported Pincoda more acceptable ad better quality as accepted by the Managing committee of Federal fort residents association. The agreement is to provide door frame of country wood alone.
17. 1^ST opposite party is not bound to provide Kotah stone flooring. Only polished kotah stones are used in the common corridors.
18. Open well is available in the property and instead of one bore well the 1^st  opposite party has actually dug three bore wells. The water from one bore well is sufficient enough to cater  the needs of the residents.
19. There are no stipulations for fixing solar water heater in the agreement. But 1^st opposite party has made provisions for fixing the solar water heater and Owners association can fix it if found necessary.
20. There was no promise for market rent during the period for delay in handing over the flat. The delay in construction was due to the reasons beyond the control of this opposite party.

Each and every point of construction had been checked by the complainant along with this opposite party and satisfied of the perfect completion of the construction work. All the facilities and amenities stipulate in the agreement has been provided and the complainant had been perfectly satisfied, till recently. There is no deficiency in service and unfair trade practice. Hence the complainant is not entitled to get any amount of compensation for this.

1^st  opposite party filed additional version stating that as per resolution passed by the General Body meeting of Federal Fort Residents Association each and every allottees were directed to pay  an amount of Rs.100/- per square feet over and above the agreed amount rate as per the individual agreement to M/s. Ambas properties and 50% of increased rate is to be paid before 1^st week of January 2009 and the balance 50% is to be paid before 1^st week of March 2009 and it was also decided    that there will be no change in payment schedule as per the individual agreement.  Since the complainant has to pay an amount of Rs.136000/- towards the additional payment as per the above said resolution. The complainant is failed to remit the additional payment till this date. This is only due to the negligence on the part of complainant. The complainants file the complaint to evade from the said payment of Rs.136000/-. As per the agreement apartment shall be delivered to the allottee within 15 days from the completion or after receipt of the entire payment as provided herein from the allottee, whichever is earlier. Eventhough complainant failed to remit the entire payment, this opposite party handed over the key to the complainant as and when the construction was completed.  Therefore the complaint is liable to be dismissed.

2^nd opposite party filed version contending the following:

2^nd opposite party has retired from the partnership firm as early on 15-6-2011 and there was a reconstitution of partnership deed. This opposite party is an unnecessary party to the complaint and there is no prima facie cause of action against this opposite party. The total claim is nothing but a unadultered falsehood. There is no deficiency or unfair trade practice on the part of 2^nd opposite party. Hence complaint is liable to be dismissed with cost of this 2^nd opposite party.

Complainant and 1^st and 2^nd opposite parties filed their respective proof affidavits. Ext.A5 and A6 are marked from the side of complainant. Complainant was cross examined as PW.2.

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM  PALAKKAD

Dated this the 11^th  day of November  2015

Present   : Smt.Shiny.P.R. President

               : Smt.Suma.K.P.  Member                              Date of filing: 12/04/2012   

                                                  (C.C.No.69/12)           

Wing Commander A.Ramachandran,

S/o.Appukuttan,

Oasis, Chempalode,

Chandranagar Post,

Palakkad – 678 007                                                       -           Complainant

(By Adv.P.Anil) 

Vs

Managing Partners

1.S.Gopinathan Nair &

2. Biju Antony,

Ambas Properties,

3/516, Adam Plaza,

Municipal Junction,

North Paravoor,

Ernakulam – 683 513                                                     -           Opposite parties

(By Adv.John John)

O R D E R

By Smt.Shiny.P.R.  President.

Brief facts of complaint.

The complainant had purchased 1.71 % undivided share (equivalent to 1.23 cents of land) over 72 cents of land situated in Sy No. 4111 to 4115 of  Palakkad III Village, Palakkad Taluk   from Opposite party as per Sale deed No. 6042/2007 of SRO Palakkad after paying valid sale consideration. The opposite party had promised to build a flat admeasuring 1360 Sq.Ft at the cost and expense of the purchaser.  It is submitted that the cost of the construction was mutually arrived at and a payment schedule was also drawn up. Hundred percentage payment had been paid. Complainant also submitted that in the face of persistent demands, the opposite party has handed over the same to the complainant without obtaining the electricity, water connection and house number. Complainant further submitted that the legally sanctioned building plan EJBR /814/06-07/PW4 dated 9-2-07 has been given a complete go-by and amenities promised as per brochure had not been provided even after 40 months from the stipulated date of completion of the construction. Opposite party has built 64 flats instead of 60 flats with view to make unjust enrichment. The building of additional four flats is contrary to the promise made by the opposite party and it would add burden to the common amenities and right of the flat owners including the complainant. The opposite party sold a portion of the land, which was earmarked as common recreational area and car parking area under Block III. The complainant also submits that car parking area, swimming pool, gymnasium fitments, maintenance room, children’s play ground are  not provided. Lift provided does not confirm to standards and size specified in the brochure and plan. Fully secured compound wall not provided on the southern side of the compound. 16 feet wide two way drive main pathway not provided. Burglar alarm not installed.  Door and window frames are made of country wood, instead of teakwood frames as promised. Kotah stone flooring not done on emergency exit stair cases. On the common corridors where the Kotah stones have been laid, it has not been polished or cleaned. Even though three bore wells have been dug, pumps and motors fitted only in one bore well. Apart from this solar water heater and rain water harvesting pit are also not provided. Market rent promised during the period of delay in handing over flat has not been  given. The flat was supposed to be handed over on 29-12-2008 but was given to the complainant only on September 2010. Therefore the complainant is entitled to get the market rent @ Rs.6000/- per month for the period of said 20 months with 12 % interest. The services rendered by the opposite party are far from standards and they have adopted unfair trade practice to make illegitimate gains. By the act of opposite parties complainant sustained severe mental hardship and agony. Hence the complaint. Complainant prays for an order.

1. Directing opposite parties to pay as damages Rs.1,44,000/- for market rent   for 20 months with interest, Rs.1,50,000/- for burden caused by the construction of additional 4 flats and Rs.2,00,000/- for the mental agony suffered  to the complainant.
2. Directing the opposite party to complete the construction of amenities in accordance to the specifications made in the brochure and the original plan EJBR/814/06-07/PW4 dated 9-2-2007 sanctioned by the local authority and
3. Cost of the complaint .

1^st opposite party filed version contending the following.

1. The complaint is not maintainable in law. The complainant is not a consumer under the definition of the Consumer Protection Act. The complaint is barred by limitation.
2. The opposite party admitted the Sale deed No.6042/2007 of SRO Palakkad. After execution of sale deed on 27-3-2007 an agreement was executed between the complainant and this opposite party to construct a flat with the extent of 1360 Sq. Ft. It is specifically stated in the said agreement that this agreement is to recall the totality of understanding and terms agreed between the parties and that the agreement supersedes all prior representation, communications and understanding that may have existed between the parties as regards the subject matter of this agreement including a matter with regard to amenities, completion date, specifications and the like. Opposite party submitted that after the execution of this agreement, the said agreement alone will prevail and that whatever understating were made earlier is having no relevance. The Brochure published by the 1^st opposite party was intended for giving a general idea about the being constructed. At the time of preparation of the brochure the cost proposed by the opposite party was Rs.1600/- per Sq. Ft. After the publication of the brochure, a group of persons numbering about 40, who were the staff of Federal Bank and their relatives approached the 1^st opposite party and negotiated the purchase with opposite party. They bargained on the cost and suggested certain measures reducing the cost and incorporating those suggestions, the agreement was prepared. Cost was reduced to Rs.1150/- per Sq.Ft. on the basis of the deviations made from the brochure. The agreement dated 27-3-2007 executed between the complainant and the 1^st opposite party is a comprehensive one and both the parties are liable to follow the condition of the said agreement.
3. Opposite party submitted that the constructions of the flat was over by the month of August 2010.They admitted that there are some delay in completing the construction but it was not due to the deficiency or negligence on the part of this opposite party. There was unexpected delay in getting necessary permissions and licenses from the official authorities and the said fact has resulted in the delay in completing the construction. Moreover amendments were made in the Municipality Building Rules in the year 2007 which led to changes in the building plan on various counts and that also led to the delay. The Federal Fort Residents Association, body of the flat owners including the complainant, had taken note of the delay occurred due to unforeseen causes and has condoned the delay and had approved the acts of this opposite party. The General body meeting of the Association held on 9-12-2008 took note of the reasons for the delay and the period for completion of construction was extended to 31-3-2009. Later also time was extended periodically by the Association. The application for NOC was sanctioned after 7 months of its submission. Moreover the stoppage of sand mining, lorry strike which prolonged for more than 3 months, prolongation of monsoon for a long period in 2008 also resulted in the delay of completion of the work. The delay was  not willful.
4. There was no agreement between the complainant and this opposite party that this opposite party will obtain the electric connection, water connection and house number. It is the duty of the complainant to obtain the water connection, electric connection and house number on their own cost. It is specifically stated in clause 6(a)of the agreement.
5. Though the number of flats were given as 60 in the brochure the 1^st opposite party had obtained the permission for 64 flats as per the building plan and permit. The 1^st opposite party has got right to add and reduce the number of apartments in the complex. This is within in the right of the 1^st opposite party as provided in the agreement.
6. It was decided in the general body meeting of Federal fort residents association held on 9-12-2008 as decision No.3 that an area of around 2000 Sq.ft on ground floor facing the PWD road of 3^rd block will be marked for commercial are to be utilized by M/s Ambas properties for running a super market or department store. It was pursuant to this decision that the 1^st opposite party constructed a commercial area but for the said commercial area land earmarked as common recreation area and car parking area was not utilized.
7. This opposite party has provided all the amenities as given in the agreement. Complainant is provided with stilt car parking facility.
8. As per the decision No.2 of the Federal fort residents association taken in general body meeting swimming pool was not constructed as they were not ready and willing to meet the huge recurring maintenance expenses for swimming pool. Moreover swimming pool was not part and parcel of the common amenities as provided in the agreement
9. All the necessary arrangements for the gymnasium were provided by this opposite party.
10. Maintenance room was not agreed to be provided by this opposite party.  Anyhow the space provided in the office room is now being utilized for the said purpose.
11. Children’s play area is provided which is available between Block No.I and Block No II. If any improvement is to be made there in it is to be done by Owners Association.
12. Agreement provides for lifts and staircase alone. Two lifts are provided in Block No I, each for 6 persons and one lift each is provided in Block No II & III capable of carrying 10 persons. Those are more than sufficient to cater to the needs of the residents. There were no stipulations in the agreement to provide lifts of any particular measurement.
13. Fully secured compound wall is provided on the all four sides. The potable water tanks facing and situated adjacent to main state highway is not remaining exposed to stray animals and strangers, as alleged.
14. 1^st opposite party has actually provided 16 feet wide pathway which is two way.
15. Burglar alarms are provided though there is no such condition as per the agreement
16. Door and window frame are actually made of imported Pincoda more acceptable ad better quality as accepted by the Managing committee of Federal fort residents association. The agreement is to provide door frame of country wood alone.
17. 1^ST opposite party is not bound to provide Kotah stone flooring. Only polished kotah stones are used in the common corridors.
18. Open well is available in the property and instead of one bore well the 1st opposite party has actually dug three bore wells. The water from one bore well is sufficient enough to cater  the needs of the residents.
19. There are no stipulations for fixing solar water heater in the agreement. But 1^st opposite party has made provisions for fixing the solar water heater and Owners association can fix it if found necessary.
20. There was no promise for market rent during the period for delay in handing over the flat. The delay in construction was due to the reasons beyond the control of this opposite party.

The complainant has not raised any complaint   to this opposite party. Each and every point of construction had been checked by the complainant along with this opposite party and satisfied of the perfect completion of the construction work. All the facilities and amenities stipulate in the agreement has been provided and the complainant had been perfectly satisfied, till recently. There is no deficiency in service and unfair trade practice. Hence the complainant is not entitled to get any amount of compensation for this.

1^st  opposite party fled additional version stating that as per resolution passed by the General Body meeting of Federal Fort Residents Association each and every allottees were directed to pay  an amount of Rs.100/- per square feet over and above the agreed amount rate as per the individual agreement to M/s.Ambas properties and 50% of increased rate is to be paid before 1^st week of January 2009 and the balance 50% is to be paid before 1^st week of March 2009 and it was also decided that there will be no change in payment schedule as per the individual agreement.  Since the complainant has to pay an amount of Rs.136000/- towards the additional payment as per the above said resolution. The complainant is failed to remit the additional payment till this date. This is only due to the negligence on the part of complainant. The complainant file the complaint to evade from the said payment of Rs.136000/-. As per the agreement apartment shall be delivered to the allottee within 15 days from the completion or after receipt of the entire payment as provided herein from the allottee, whichever is earlier. Eventhough complainant failed to remit the entire payment, this opposite party handed over the key to the complainant as and when the construction was completed.  Therefore the complaint is liable to be dismissed.

2^nd opposite party filed version contending the following:

2^nd opposite party has retired from the partnership firm as early on 15-6-2011 and there was a reconstitution of partnership deed. This opposite party is an unnecessary party to the complaint and there is no prima facie cause of action against this opposite party. The total claim is nothing but a unadultered falsehood. There is no deficiency or unfair trade practice on the part of 2^nd opposite party. Hence complaint is liable to be dismissed with cost of this 2^nd opposite party.

Complainant, 1^st and 2^nd opposite parties filed their respective proof affidavits. Ext.A7 and A8 are marked from the side of complainant. Ext.B1 is marked from the side of the opposite party. Complainant was cross examined as PW3.

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM  PALAKKAD

Dated this the 11^th  day of November   2015

Present   : Smt.Shiny.P.R. President

               : Smt.Suma.K.P.  Member                              Date of filing: 12/04/2012   

                                                  (C.C.No.70/2012)       

K.C.Girija

W/o.V.Padmanabhan,

9/1474, Jaya Nagar,

Chandranagar Post,

Palakkad – 678 007                                                       -           Complainant

(By Adv.P.Anil) 

Vs

Managing Partners

1.S.Gopinathan Nair &

2. Biju Antony,

Ambas Properties,

3/516, Adam Plaza,

Municipal Junction,

North Paravoor,

Ernakulam – 683 513                                                     -           Opposite parties

(By Adv.John John)

O R D E R

By Smt.Shiny.P.R.  President.

Brief facts of complaint.

The complainant had purchased 1.30 % undivided rights and interest over 72 cents of land situated in Sy.No.4111 to 4115 of  Palakkad III Village , Palakkad Taluk   from Opposite party as per Sale deed No.6056/2007 of SRO Palakkad after paying valid sale consideration. The opposite party had promised to build a flat admeasuring 1030 Sq.Ft at the cost and expense of the purchaser.  It is submitted that the costs of the construction was mutually arrived at and a payment schedule was also drawn up. Complainant had strictly complied with the time stipulated payment schedule. As of now 95% of the amount had been paid by the complainant to the opposite party. The complainant is liable to pay the remaining    5% only at the stage of handing over of check list i.e. after convincing all facilities promised are provided for.

 The opposite party has handed over the flat only on April 2011 to the complainant without obtaining the electricity, water connection and house number etc. Complainant further submitted that the legally sanctioned building plan EJBR /814/06-07/PW4 dated 9-2-07 has been given a complete go-by and amenities promised as per brochure had not been provided even after 40 months from the stipulated date of completion of the construction. Opposite party has built 64 flats instead of 60 flats with view to make unjust enrichment. It would add burden to the common amenities and right of the flat owners including the complainant. The opposite party sold a portion of the land, which was earmarked as common recreational area and car parking area under Block III. The complainant also submits that swimming pool, gymnasium fitments, maintenance room, children’s play ground are not provided. Lift provided does not confirm to standards and size specified in the brochure and plan. Fully secured compound wall not provided on the southern side of the compound. 16 feet wide two way drive main pathway not provided. Burglar alarm not installed.  Door and window frames are made of country wood, instead of teakwood frames as promised. Kotah stone flooring not done on emergency exit stair cases. On the common corridors where the Kotah stones have been laid, it has not been polished or cleaned. Eventhough three bore wells have been dug, pumps and motors fitted only in one bore well. Apart from this solar water heater and rain water harvesting pit are also not provided. Market rent promised during the period of delay in handing over flat has not been  given. The flat was supposed to be handed over on    31-12-2008 but was given to the complainant only on April 2011. Therefore the complainant is entitled to get the market rent @ Rs.4000/- per month for the period of said 27 months with interest. The services rendered by the opposite party are far from standards and they have adopted unfair trade practice to make illegitimate gains. By the act of opposite parties complainant sustained severe mental hardship and agony. Hence the complaint. Complainant prays for an order.

1. Directing opposite parties to pay as damages Rs.1,08,000/- for market rent for 27 months with interest, Rs.1,50,000/- for burden caused by the construction of additional 4 flats and Rs.2,00,000/-  for the mental agony suffered  to the complainant.

1. Directing the opposite party to complete the construction of amenities in accordance to the specifications made in the brochure and the original plan EJBR/814/06-07/PW4 dated 9-2-2007 sanctioned by the local authority and receive from the complainant an amount of Rs.49,225/- being balance 5% of cost.
2. Cost of the complaint .

1^st Opposite party filed version contending the following.

1. The opposite party admitted the Sale deed No.6056/2007 of SRO Palakkad.  After execution of sale deed on 27-3-2007 an agreement was executed between the complainant and this opposite party to construct a flat with the extent of 1030 Sq. Ft. It is specifically stated in the said agreement that this agreement is to recall the totality of understanding and terms agreed between the parties and that the agreement supersedes all prior representation, communications and understanding that may have existed between the parties as regards the subject matter of this agreement including a matter with regard to amenities, completion date, specifications and the like. Opposite party submitted that after the execution of this agreement, the said agreement alone will prevail and that whatever understating were made earlier is having no relevance. The Brochure published by the 1^st opposite party was intended for giving a general idea about the being constructed. At the time of preparation of the brochure the cost proposed by the opposite party was Rs.1600/- per Sq. Ft. After the publication of the brochure, a group of persons numbering about 40, who were the staff of Federal Bank and their relatives approached the 1^st opposite party and negotiated the purchase with opposite party. They bargained on the cost and suggested certain measures reducing the cost and incorporating those suggestions, the agreement was prepared. Cost was reduced to Rs.1150/- per Sq.Ft. on the basis of the deviations made from the brochure. The agreement dated 27-3-2007 executed between the complainant and the 1^st opposite party is a comprehensive one and both the parties are liable to follow the condition of the said agreement.
2. Opposite party submitted that the constructions of the flat was over by the month of August 2010.They admitted that there are some delay in completing the construction but it was not due to the deficiency or negligence on the part of this opposite party. There was unexpected delay in getting necessary permissions and licenses from the official authorities and the said fact has resulted in the delay in completing the construction. More over amendments were made in the Municipality Building Rules in the year 2007 which led to changes in the building plan on various counts and that also led to the delay. The Federal Fort Residents Association, body of the flat owners including the complainant, had taken note of the delay occurred due to unforeseen causes and has condoned the delay and had approved the acts of this opposite party. The General body meeting of the Association held on 9-12-2008 took note of the reasons for the delay and the period for completion of construction was extended to 31-3-2009. Later also time was extended periodically by the Association. The application for NOC was sanctioned after 7 months of its submission. More over the stoppage of sand mining, lorry strike which prolonged for more than 3 months, prolongation of monsoon for a long period in 2008 also resulted in the delay of completion of the work. The delay was not willful.
3. There was no agreement between the complainant and this opposite party that this opposite party will obtain the electric connection, water connection and house number. It is the duty of the complainant to obtain the water connection, electric connection and house number on their own cost. It is specifically stated in clause 6(a)of the agreement.
4. Though the numbers of flats were given as 60 in the brochure the 1^st opposite party had obtained the permission for 64 flats as per the building plan and permit. The 1^st opposite party has got right to add and reduce the number of apartments in the complex. This is within in the right of the 1^st opposite party as provided in the agreement.
5. It was decided in the general body meeting of Federal fort residents association held on 9-12-2008 as Decision No.3 that an area of around 2000 Sq.ft on ground floor facing the PWD road of 3^rd block will be marked for commercial are to be utilized by M/s Ambas properties for running a super market or department store. It was pursuant to this decision that the 1^st opposite party constructed a commercial area but for the  said commercial area land earmarked as common recreation area and car parking area was not utilized.
6. This opposite party has provided all the amenities as given in the agreement. Complainant is provided with stilt car parking facility.
7. As per the decision No.2 of the Federal fort residents association taken in general meeting swimming pool was not constructed. Moreover swimming pool was not part and parcel of the common amenities as provided in the agreement
8. All the necessary arrangements for the gymnasium were provided by this opposite party. If the complainant wishes to have any particular fitment, this opposite party shall provide if it is reasonable.
9. Maintenance room was not agreed to be provided by this opposite party.  Anyhow the space provided in the office room is now being utilized for the said purpose.
10. Children’s play area is provided which is available between Block No.I and Block No II. If any improvement is to be made there in it is to be done by Owners Association.
11. Agreement provides for lifts and staircase alone. Two lifts are provided in Block No I, each for 6 persons and one lift each is provided in Block No II & III capable of carrying 10 persons. Those are more than sufficient to cater to the needs of the residents. There were no stipulations in the agreement to provide lifts of any particular measurement.
12. Fully secured compound wall is provided on the all four sides. The potable water tanks facing and situated adjacent to main state highway is not remaining exposed to stray animals and strangers, as alleged.
13. 1^st opposite party has provided 16 feet wide pathway which is two way.
14. Burglar alarms are provided though there is no such condition as per the agreement
15. Door and window frame are actually made of imported Pincoda more acceptable ad better quality as accepted by the Managing committee of Federal fort residents association. The agreement is to provide door frame of country wood alone.
16. 1^ST opposite party is not bound to provide Kotah stone flooring. Only polished kotah stones are used in the common corridors.
17. Open well is available in the property and instead of one bore well the 1^st  opposite party has actually dug three bore wells. The water from one bore well is sufficient enough to cater  the needs of the residents.
18. There are no stipulations for fixing solar water heater in the agreement. But 1^st opposite party has made provisions for fixing the solar water heater and Owners association can fix it if found necessary.
19. There was no promise for market rent during the period for delay in handing over the flat.The delay in construction was due to the reasons beyond the control of this opposite party.

The complainant has not raised any complaint   to this opposite party. Each and every point of construction had been checked by the complainant along with this opposite party and satisfied of the perfect completion of the construction work. All the facilities and amenities stipulate in the agreement has been provided and the compliant had been perfectly satisfied, till recently. There is no deficiency in service and unfair trade practice. Hence the complainant is not entitled to get any amount of compensation for this.

1^st  opposite party filed additional version stating that as per resolution passed by the General Body meeting of Federal Fort Residents Association each and every allottees were directed to pay  an amount of Rs.100/- per square feet over and above the agreed amount rate as per the individual agreement to M/s Ambas properties and 50% of increased rate is to be paid before 1^st week of January 2009 and the balance 50% is to be paid before 1^st week of March 2009 and it was also decided that there will be no change in payment schedule as per the individual agreement.  Since the complainant has to pay an amount of Rs.103000/- towards the additional payment as per the above said resolution.  The complainant made additional payments in two instilments on 10-8-2010 and on 22-2-2011 respectively. Actually the complainant ought to have remitted the entire amount of Rs.103000/- before 1^st week of March 2009.This is only due to the negligence on the part of complainant. The complainant filed the above said complaint for illegal enrichment and to evade from the liability happened to be abused due to the highly belated payments as stated above.  Therefore the complaint is liable to be dismissed.

The contention of the 2^nd opposite party is that he has retired from the partnership firm as early on 15-6-2011 and there was a reconstitution of partnership deed. This opposite party is an unnecessary party to the complaint and there is no prima facie cause of action against this opposite party. The total claim is nothing but a unadultered falsehood. There is no deficiency or unfair trade practice on the part of 2^nd opposite party. Hence the complaint is liable to be dismissed with cost of this 2^nd opposite party.

Complainant, 1^st and 2^nd opposite parties filed their respective proof affidavits. Ext.A34 and A35 are marked from the side of complainant.Ext.B.1 is marked from the side of the opposite party. Power of attorney holder of Complainant was cross examined as PW.11

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM PALAKKAD

Dated this the 11^th  day of  November   2015

Present   : Smt.Shiny.P.R. President

               : Smt.Suma.K.P.  Member                                       Date of filing: 12/04/2012   

                                                  (C.C.No.71/2012)       

Suresh kumar V.C,

S/o.Ramankutty Panickar,

Through his Power of Attorney Holder

V.C.Krishnadasan,

S/o.Ramankutty Panickar,

Nandanam House,

Pallikurup Post,

Mannarkkad, Palakkad.                                                 -           Complainant

(By Adv.P.Anil) 

Vs

Managing Partners

1.S.Gopinathan Nair &

2. Biju Antony,

Ambas Properties,

3/516, Adam Plaza,

Municipal Junction,

North Paravoor,

Ernakulam – 683 513                                         -           Opposite parties

(By Adv.John John)

O R D E R

By Smt.Shiny.P.R.  President.

Brief facts of complaint.

The complainant had purchased  a flat constructed by the opposite parties vide Sale deed No. 8088/2010 of SRO Palakkad after paying valid sale consideration. At the time of purchase of flat the complainant was made to believe by the opposite party that they are in the course of fulfilling the promises set out in the brochure and the facilities would be completed soon. During the time of purchase and for the matter even now, the men of the opposite party is seen creating an impression that they are about to finish the work in respect of the facilities promised. The attitude of the opposite party of promising the amenities through their advertisement and surreptitious backtracking from the said promises is nothing short of unfair trade practice. The complainant submits that swimming pool, gymnasium fitments, maintenance room, children’s play ground are not provided. Lift provided does not confirm to standards and size specified in the brochure and plan, i,e. length and width of 6 feet 3 inches was promised, instead lifts of lesser size have been installed. Fully secured compound wall not provided on the southern side of the compound. As a result potable water tanks facing and situated adjacent to main state high way, remains exposed to stray animals and strangers. 16 feet wide two way drive main pathway not provided. Burglar alarm not installed.  Door and window frames are made of country wood, instead of teakwood frames as promised. Kotah stone flooring not done on emergency exit staircases. On the common corridors where the Kotah stones have been laid, it has not been polished or cleaned. Eventhough three bore wells have been dug, pumps and motors fitted only in one borewell.The Solar water heater and rain water harvesting pit are also not provided.

Complainant prays for an order

1.  Directing opposite parties to pay Rs.1,00,000/- as damages towards mental agony suffered to the complainant.
2. Directing the opposite party to complete the construction of amenities in accordance to the specifications made in the brochure and the original plan EJBR/814/06-07/PW4 dated 9-2-2007 sanctioned by the local authority and
3. Cost of the complaint.

1^st Opposite party filed version contending the following.

1. The opposite party admitted the sale of flat as per Sale deed No.8088/2010 of SRO Palakkad . On 25-6-2007 an agreement was executed between the complainant and this opposite party to construct a flat. Opposite party has complied with all the conditions and constructed a flat for the complainant as per the terms of the agreement.
2. It is specifically stated in the said agreement that the agreement is to recall the totality of understanding and terms agreed between the parties and that the agreement supersedes all prior representation, communications and understanding that may have existed between the parties as regards the subject matter of this agreement including a matter with regard to amenities, completion date, specifications and the like. Opposite party submitted that after the execution of this agreement, the said agreement alone will prevail and that whatever understating was made earlier is having no relevance. The Brochure published by the 1^st opposite arty was intended for giving a general idea about the being constructed. At the time of preparation of the brochure the cost proposed by the opposite party was Rs.1600/- per Sq. Ft. After the publication of the brochure, a group of persons numbering about 40, who were the staff of Federal Bank and their relatives approached the 1^st opposite party and negotiated the purchase with opposite party. They bargained on the cost and suggested certain measures reducing the cost and incorporating those suggestions, the agreement was prepared. Cost was reduced to Rs.1150/- per sq.ft. on the basis of the deviations made from the brochure. The agreement dated 25-6-2007 executed between the complainant and the 1^st opposite party is comprehensive one and both parties are liable to follow the condition of the said agreement.
3. Since opposite party completed the construction of work and provided all the amenities as agreed, the complainant had no occasion to plead with the opposite parties for the amenities to be provided. Flat constructed for the complainant is a congenial residence and it is free from all kind of hassles. The flat is having all the basic standards and amenities as agreed by the opposite parties.
4. Opposite party submitted that the constructions of the flat was over by the month of August 2010.They admitted that there are some delay in completing the construction but it was not due to the deficiency or negligence on the part of this opposite party. There was unexpected delay in getting necessary permissions and licenses from the official authorities and the said fact has resulted in the delay in completing the construction. Moreover amendments were made in the Municipality Building Rules in the year 2007 which led to changes in the building plan on various counts and that also led to the delay. The Federal Fort Residents Association, body of the flat owners including the complainant, had taken note of the delay occurred due to unforeseen causes and has condoned the delay and had approved the acts of this opposite party. The General body meeting of the Association held on 9-12-2008 took note of the reasons for the delay and the period for completion of construction was extended to 31-3-2009. Later also time was extended periodically by the Association. The application for NOC was sanctioned after 7 months of its submission. More over the stoppage of sand mining, lorry strike which prolonged for more than 3 months, prolongation of monsoon for a long period in 2008 also resulted in the delay of completion of the work. The delay was not willful. The complainant was approved in time regarding the causes for delay and he had approved the same.
5. As per the decision No.2 of the Federal Fort Residents Association taken in general body meeting swimming pool was not constructed as they were not ready and willing to meet the huge recurring maintenance expenses for swimming pool. Moreover swimming pool was not part and parcel of the common amenities as provided in the agreement
6. All the necessary arrangements for the gymnasium were provided by this opposite party. If the complainant wishes to have any particular fitment, this opposite party shall provide if it is reasonable.
7. Maintenance room was not agreed to be provided by this opposite party.  Anyhow the space provided in the office room is now being utilized for the said purpose.
8. Children’s play area is provided which is available between Block No.I  and Block No II. If any improvement is to be made therein it is to be done by Owners Association.
9.  It is baseless to allege that lift does not confirm to standard size specified in the brochure and the plan. The brochure had given only a general idea and what is relevant is the Agreement which provides for “Lift and staircase” alone. Two lifts are provided in Block No. I, each for 6 persons and one lift each is provided in Block No. II & III capable of carrying 10 persons. Those are more than sufficient to cater to the needs of the residents. There was no stipulation in the agreement to provide lifts of any particular measurement.
10. Fully secured compound wall is provided on the all four sides. The potable water tanks facing and situated adjacent to main state highway is not remaining exposed to stray animals and strangers, as alleged.
11. 1^st opposite party  has actually provided 16 feet wide pathway which is two way.
12. Burglar alarms are provided though there is no such condition as per the agreement
13. Door and window frame are actually made of imported Pincoda more acceptable and better quality as accepted by the Managing committee of Federal Fort Residents Association. There was no promise to provide teak wood frames in the agreement. The agreement is to provide door frame of country wood alone.
14. 1^ST opposite party is not bound to provide Kotah stone flooring .Only polished kotah stones are used in the common corridors.
15. Open well is available in the property and instead of one bore well the 1^st  opposite party has actually dug three bore wells. The water from one bore well is sufficient enough to cater to the needs of the residents.
16. There are no stipulations for fixing solar water heater in the agreement. But 1^st opposite party has made provisions for fixing the solar water heater and Owners association can fix it if found necessary.

Each and every point of construction had been checked by the complainant along with this opposite party and he satisfied of the perfect completion of the construction work. All the facilities and amenities stipulate in the agreement has been provided and the complainant had been perfectly satisfied, till recently. There is no deficiency in service and unfair trade practice.

1^st  opposite party filed additional version stating that as per resolution passed by the General Body meeting of Federal Fort Residents Association each and every allottees were directed to pay  an amount of Rs.100/- per square feet over and above the agreed amount rate as per the individual agreement to M/s.Ambas properties and 50% of increased rate is to be paid before 1^st week of January 2009 and the balance 50% is to be paid before 1^st week of March 2009 and it was also decided to  that there will be no change in payment schedule as per the individual agreement.  Since the flat purchased by complainant is having a total area of 1047 sq.ft, the complainant is liable to pay an amount of Rs.1,04,700/- towards the additional payment as per the said resolution. The complainant is failed to remit the   additional payment till this date. This is only due to the negligence on the part of complainant. The complainant filed the complaint to evade from the said payment of Rs.104700/-.

As per the agreement apartment shall be delivered to the allottee within 15 days from the completion or after receipt of the entire payment as provided herein from the allottee, whichever is earlier. Even though complainant failed to remit the entire payment, this opposite party handed over the key to the complainant as and when the construction was completed.  Therefore the complaint is liable to be dismissed.

The contention of the 2^nd opposite party is that he has retired from the partnership firm as early on 15-6-2011 and there was a reconstitution of partnership deed. This opposite party is an unnecessary party to the complaint and there is no prima facie cause of action against this opposite party. The total claim is nothing but a unadultered falsehood. There is no deficiency or unfair trade practice on the part of 2^nd opposite party. Hence the complaint is liable to be dismissed with cost of this 2^nd opposite party.

Complainant, 1^st and 2^nd opposite parties filed their respective proof affidavits. Ext.A22 to 24 are marked from the side of complainant.Ext.B1 is marked from the side of the opposite party. Power of attorney of Complainant was cross examined as PW8.

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM  PALAKKAD

Dated this the 11^th  day of November   2015

Present   : Smt.Shiny.P.R. President

               : Smt.Suma.K.P.  Member                                                Date of filing: 12/04/2012   

                                                  (C.C.No.72/2012)       

Premkumar

S/o.Purushothaman Nair,

Panchajanyam, Ullas Nagar,

Chadayankalai,Kanjikkode,

Palakkad

Through Power of Attorney Holder

Smt.Kunhilakshmi

W/o.C.Ramakrishnan Nair,

Panchajanyam, Ullas Nagar,

Chadayankalai,Kanjikkode,

Palakkad                                                                       -                       Complainant

(By Adv.P.Anil) 

Vs

Managing Partners

1.S.Gopinathan Nair &

2. Biju Antony,

Ambas Properties,

3/516, Adam Plaza,

Municipal Junction,

North Paravoor,

Ernakulam – 683 513                                                     -                       Opposite parties

(By Adv.John John)

O R D E R

By Smt.Shiny.P.R.  President.

Brief facts of complaint.

The complainant had bought undivided rights and interest over 72 cents of land situated in Sy No 4111 to 4115 of  Palakkad III Village , Palakkad Taluk owned by the opposite party i.e. 1.22% undivided share, equivalent to 0.88 cents in the said propertly. The said purchase was by virtue of registered sale deed No.6048/2007 of SRO Palakkad after paying valid sale consideration. The opposite party had promised to build a flat admeasuring 971 Sq.Ft at the cost and expense of the purchaser.  Cost of the construction was mutually arrived at and a payment schedule was also drawn up. Complainant had strictly complied with the time stipulated payment schedule. Complainant has paid the full amount to the opposite party. 

 The opposite party has handed over the flat only on July 2011 to the complainant without obtaining the electricity, water connection and house number etc. Complainant further submitted that the legally sanctioned building plan EJBR /814/06-07/PW4 dated 9-2-07 has been given a complete go-by and amenities promised as per brochure had not been provided even after 40 months from the stipulated date of completion of the construction. Opposite party has built 64 flats instead of 60 flats with view to make unjust enrichment. It would add burden to the common amenities and right of the flat owners including the complainant. The opposite party sold a portion of the land, which was earmarked as common recreational area and car parking area under Block III. The complainant also submits that swimming pool, gymnasium fitments, maintenance room, children’s play ground are not provided. Lift provided does not confirm to standards and size specified in the brochure and plan. Fully secured compound wall not provided on the southern side of the compound. 16 feet wide two way drive main pathway not provided. Burglar alarm not installed. Door and window frames are made of country wood, instead of teakwood frames as promised. Kotah stone flooring not done on emergency exit staircases. On the common corridors where the Kotah stones have been laid , it has not been polished or cleaned. Eventhough three bore wells have been dug, pumps and motors fitted only in one borewell. Apart from this solar water heater and rain water harvesting pit are also not provided. Market rent promised during the period of delay in handing over flat has not been  given. The flat was supposed to be handed over on   31-12-2008 but was given to the complainant only on July 2011. Therefore the complainant is entitled to get the market rent @ Rs.3000/- per month for the period of said 29 months with   12 % interest. The services rendered by the opposite party are far from standards and they have adopted unfair trade practice to make illegitimate gains. By the act of opposite parties complainant sustained severe mental hardship and agony. Hence the complaint. Complainant prays for an order.

1. Directing opposite parties to pay as damages Rs.87,000/- for market rent         

for 29 months with interest, Rs.1,50,000/- for burden caused by the construction of additional 4 flats and Rs.2,00,000/- for the mental agony suffered  to the complainant.

2. Directing the opposite party to complete the construction of amenities in accordance to the specifications made in the brochure and the original plan EJBR/814/06-07/PW4 dated 9-2-2007 sanctioned by the local authority and
3. Cost of the complaint .

1^st Opposite party filed version contending the following.

1. The opposite party admitted   Sale deed No.6048/2007 of SRO Palakkad.  After execution of sale deed on 28-3-2007 an agreement was executed between the complainant and this opposite party to construct a flat with the extent of 971 Sq. Ft. This opposite party has complied with all the conditions and constructed a flat for the complainant as per the terms of the agreement.
2. It is specifically stated in the said agreement that this agreement is to recall the totality of understanding and terms agreed between the parties and that the agreement supersedes all prior representation, communications and understanding that may have existed between the parties as regards the subject matter of this agreement including a matter with regard to amenities, completion date, specifications and the like. Opposite party submitted that after the execution of this agreement, the said agreement alone will prevail and that whatever understating were made earlier is having no relevance. The Brochure published by the 1^st opposite arty was intended for giving a general idea about the being constructed. At the time of preparation of the brochure the cost proposed by the opposite party was Rs.1600/- per Sq. Ft. After the publication of the brochure, a group of persons numbering about 40, who were the staff of Federal Bank and their relatives approached the 1^st opposite party and negotiated the purchase with opposite party. They bargained on the cost and suggested certain measures reducing the cost and incorporating those suggestions, the agreement was prepared. Cost was reduced to Rs.1150/- per Sq.Ft. on the basis of the deviations made from the brochure. The agreement dated 27-3-2007 executed between the complainant and the 1^st opposite arty is a comprehensive one and both the parties are liable to follow the condition of the said agreement.
3. Opposite party submitted that the constructions of the flat was over by the month of August 2010.They admitted that there are some delay in completing the construction but it was not due to the deficiency or negligence on the part of this opposite party. There was unexpected delay in getting necessary permissions and licenses from the official authorities and the said fact has resulted in the delay in completing the construction. Moreover amendments were made in the Municipality Building Rules in the year 2007 which led to changes in the building plan on various counts and that also led to the delay. The Federal Fort Residents Association, body of the flat owners including the complainant, had taken note of the delay occurred due to unforeseen causes and has condoned the delay and had approved the acts of this opposite party. The General body meeting of the Association held on 9-12-2008 took note of the reasons for the delay and the period for completion of construction was extended to 31-3-2009. Later also time was extended periodically by the Association. The application for NOC was sanctioned after 7 months of its submission. Moreover the stoppage of sand mining, lorry strike which prolonged for more than 3 months, prolongation of monsoon for a long period in 2008 also resulted in the delay of completion of the work. The delay was  not willful.
4. There was no agreement between the complainant and this opposite party that this opposite party will obtain the electric connection, water connection and house number. It is the duty of the complainant to obtain the water connection, electric connection and house number on their own  cost. It is specifically stated in clause 6(a)of the agreement .
5. Though the number of flats were given as 60 in the brochure the 1^st opposite party had obtained the permission for 64 flats as per the building plan and permit. The 1^st opposite party has got right to add and reduce the number of apartments in the complex. This is within in the right of the 1^st opposite party as provided in the agreement.
6. It was decided in the general body meeting of Federal fort residents association held on 9-12-2008 as Decision No.3 that an area of around 2000 Sq.ft on ground floor facing the PWD road of 3^rd block will be marked for commercial are to be utilized by M/s Ambas properties for running a super market or department store. It was pursuant to this decision that the 1^st opposite party constructed a commercial area but for the said commercial area land earmarked as common recreation area and car parking area was not utilized.
7. This opposite party has provided all the amenities as given in the agreement. Complainant is provided with stilt car parking facility.
8. As per the decision No.2 of the Federal fort resident’s association taken in general body meeting swimming pool was not constructed. Moreover swimming pool was not part and parcel of the common amenities as provided in the agreement
9. All the necessary arrangements for the gymnasium were provided by this opposite party. If the complainant wishes to have any particular fitment, this opposite party shall provide if it is reasonable.
10. Maintenance room was not agreed to be provided by this opposite party.  Anyhow the space provided in the office room is now being utilized for the said purpose.
11. Children’s play area is provided which is available between Block No.I and Block No II. If any improvement is to be made therein it is to be done by Owners Association.
12. Agreement provides for lifts and staircase alone. Two lifts are provided in Block No I, each for 6 persons and one lift each is provided in Block No. II & III capable of carrying 10 persons. Those are more than sufficient to cater to the needs of the residents. There were no stipulations in the agreement to provide lifts of any particular measurement.
13. Fully secured compound wall is provided on the all four sides. The potable water tanks facing and situated adjacent to main state highway is not remaining exposed to stray animals and strangers, as alleged.
14. 1^st opposite party has provided 16 feet wide pathway which is two way.
15. Burglar alarms are provided though there is no such condition as per the agreement
16. Door and window frame are actually made of imported Pincoda more acceptable ad better quality as accepted by the Managing committee of Federal fort residents association. The agreement is to provide door frame of country wood alone.
17. 1^ST opposite party is not bound to provide Kotah stone flooring. Only polished kotah stones are used in the common corridors.
18. Open well is available in the property and instead of one borewell the 1^st  opposite party has actually dug three bore wells. The water from one borewell is sufficient enough to cater  the needs of the residents.
19. There are no stipulations for fixing solar water heater in the agreement. But 1^st opposite party has made provisions for fixing the solar water heater and Owners association can fix it if found necessary.
20. There was no promise for market rent during the period for delay in handing over the flat. The delay in construction was due to the reasons beyond the control of this opposite party.

Each and every point of construction had been checked by the complainant along with this opposite party and satisfied of the perfect completion of the construction work. All the facilities and amenities stipulate in the agreement has been provided and the compliant had been perfectly satisfied, till recently. There is no deficiency in service and unfair trade practice. Hence the complainant is not entitled to get any amount of compensation for this.

1^st  opposite party fled additional version stating that as per resolution passed by the General Body meeting of Federal Fort Residents Association each and every allottees were directed to pay  an amount of Rs .100/- per square feet over and above the agreed amount rate as per the individual agreement to M/s Ambas properties and 50% of increased rate is to be paid before 1^st week of January 2009 and the balance 50% is to be paid before 1^st week of March 2009 and it was also decided that there will be no change in payment schedule as per the individual agreement.  Since the flat purchased by the complainant is having the area of 971 sq.ft the complainant is liable to pay an amount of Rs.97100/- towards the additional payment as per the resolution passed. The complainant made additional payments in three installments on 13-8-2010, 3-12-12 and 26-2-11. Actually complainant ought to have remitted the entire amount of Rs.97100/- before 1^st week of March 2009. This is only due to the negligence on the part of complainant. The complainant filed the above said complaint for illegal enrichment and to evade from the liability happened to be abused due to the highly belated payments as stated above.  Therefore the complaint is liable to be dismissed

The contention of the 2^nd opposite party is that he has retired from the partnership firm as early on 15-6-2011 and there was a reconstitution of partnership deed. This opposite party is an unnecessary party to the complaint and there is no prima facie cause of action against this opposite party. The total claim is nothing but a unadultered falsehood. There is no deficiency or unfair trade practice on the part of 2^nd opposite party. Hence the complaint is liable to be dismissed with cost of this 2^nd opposite party.

Complainant, 1^st and 2^nd opposite parties filed their respective proof affidavits. Ext.A.11 to 13 were marked from the side of complainant. Ext B1 was marked from the side of the opposite party. Power of attorney holder of Complainant was cross examined as PW.5

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM  PALAKKAD

Dated this the 11^th  day of  November  2015

Present   : Smt.Shiny.P.R. President

               : Smt.Suma.K.P.  Member                                              Date of filing: 17/04/2014   

                                                   (C.C.No.75/2012)

P E Venugopalan

S/o.Late P.K.K.Achan,

Flat No.4D, Federal Fort,

Manappullikavu, Palakkad                                             -           Complainant

(By Adv.P.Anil) 

Vs

Managing Partners

1.S.Gopinathan Nair &

2. Biju Antony,

Ambas Properties,

3/516, Adam Plaza,

Municipal Junction,

North Paravoor,

Ernakulam – 683 513                                         -           Opposite parties

(By Adv.John John)

O R D E R

By Smt.Shiny.P.R.  President.

Brief facts of complaint.

The complainant had bought 1.22 % undivided rights and interest over 72 cents of land situated in Sy No.4111 to 4115 of  Palakkad III Village , Palakkad Taluk   from Opposite party as per Sale deed No.6060/2007 of SRO Palakkad. The opposite party had promised to build a flat admeasuring 970 Sq.Ft at the cost and expense of the purchaser.  Cost of the construction was mutually arrived at and a payment schedule was also drawn up.    

Complainant had strictly complied with the time stipulated payment schedule. As of now more than 97.50% of the amount had been paid by the complainant to the opposite party. The complainant is liable to pay the remaining 2.04 % only at the stage of handing over of check list i,e after convincing all facilities promised are provided for. The opposite party even forced to pay escalation cost at the instance of the opposite party.   The opposite party has handed over the flat only on September 2010 to the complainant without obtaining the electricity, water connection and house number etc. Complainant further submitted that the legally sanctioned building plan EJBR /814/06-07/PW4 dated 9-2-07 has been given a complete go-by and amenities promised as per brochure had not been provided even after 40 months from the stipulated date of completion of the construction. Opposite party has built 64 flats instead of 60 flats with view to make unjust enrichment. It would add burden to the common amenities and right of the flat owners including the complainant. The opposite party sold a portion of the land, which was earmarked as common recreational area and car parking area under Block III. The complainant also submits that swimming pool, gymnasium fitments, maintenance room, children’s play ground are not provided. Lift provided does not confirm to standards and size specified in the brochure and plan. Fully secured compound wall not provided on the southern side of the compound.16 feet wide two way drive main pathway not provided. Burglar alarm not installed.  Door and window frames are made of country wood, instead of teakwood frames as promised. Kotah stone flooring not done on emergency exit staircases. On the common corridors where the Kotah stones have been laid, it has not been polished or cleaned.          Eventhough three bore wells have been dug, pumps and motors fitted only in one borewell. Apart from this solar water heater and rain water harvesting pit are also not provided. Market rent promised during the period of delay in handing over flat has not been given. The flat was supposed to be handed over on 29-12-2008 but was given to the complainant only on September 2010. Therefore the complainant is entitled to get the market rent @ Rs. 4000/- per month for the period of said 20 months with 12% interest. The complainant also submitted that he had paid Rs.113975/- towards teak wood charges. But the opposite party has taken care to install teakwood only in front door frame and in all other windows they have installed only ordinary country wood. Hence the opposite party is liable to repay Rs.102600/- unfairly collected from the complainant.

By the act of opposite parties complainant sustained severe mental hardship and agony. Hence the complaint. Complainant prays for an order.

1. Directing opposite parties to pay as damages Rs.96,000/- for market rent for 20 months

with interest, Rs.1,50,000/-  for burden caused by the construction of additional 4 flats, Rs.2,00,000/-  for the mental agony suffered  and for teak wood charges unfairly collected to the complainant Rs.1,02,600/-.

2. Directing the opposite party to complete the construction of amenities in accordance to the specifications made in the brochure and the original plan EJBR/814/06-07/PW4 dated 9-2-2007 sanctioned by the local authority and receive from the complainant remaining 2.04% of the actual cost of construction by handing over the check list.
3. Cost of the complaint.

1^st Opposite party filed version contending the following.

1. The opposite party admitted the Sale deed No.6060/2007 of SRO Palakkad.  After execution of sale deed on 28-3-2007 an agreement was executed between the complainant and this opposite party to construct a flat with the extent of 970 Sq. Ft. It is specifically stated in the said agreement that this agreement is to recall the totality of understanding and terms agreed between the parties and that the agreement supersedes all prior representation, communications and understanding that may have existed between the parties as regards the subject matter of this agreement including a matter with regard to amenities, completion date, specifications and the like. Opposite party submitted that after the execution of this agreement, the said agreement alone will prevail and that whatever understating was made earlier is having no relevance. The Brochure published by the 1^st opposite party was intended for giving a general idea about the being constructed. At the time of preparation of the brochure the cost proposed by the opposite party was Rs.1600/-per Sq. Ft. After the publication of the brochure, a group of persons numbering about 40, who were the staff of Federal Bank and their relatives approached the 1^st opposite party and negotiated the purchase with opposite party. They bargained on the cost and suggested certain measures reducing the cost and incorporating those suggestions, the agreement was prepared. Cost was reduced to Rs.1150/- per Sq.Ft. on the basis of the deviations made from the brochure. The agreement dated 27-3-2007 executed between the complainant and the 1^st opposite party is a comprehensive one and both the parties are liable to follow the condition of the said agreement.
2. Opposite party submitted that the constructions of the flat was over by the month of August 2010.They admitted that there are some delay in completing the construction but it was not due to the deficiency or negligence on the part of this opposite party. There was unexpected delay in getting necessary permissions and licenses from the official authorities and the said fact has resulted in the delay in completing the construction. More over amendments were made in the Municipality Building Rules in the year 2007 which led to changes in the building plan on various counts and that also led to the delay. The Federal Fort Residents Association, body of the flat owners including the complainant, had taken note of the delay occurred due to unforeseen causes and has condoned the delay and had approved the acts of this opposite party. The General body meeting of the Association held on 9-12-2008 took note of the reasons for the delay and the period for completion of construction was extended to 31-3-2009. Later also time was extended periodically by the Association. The application for NOC was sanctioned after 7 months of its submission. Moreover the stoppage of sand mining, lorry strike which prolonged for more than 3 months, prolongation of monsoon for a long period in 2008 also resulted in the delay of completion of the work. The delay was not willful.
3. There was no agreement between the complainant and this opposite party that this opposite party will obtain the electric connection, water connection and house number. It is the duty of the complainant to obtain the water connection, electric connection and house number on their own cost. It is specifically stated in clause 6(a)of the agreement.
4. Though the number of flats were given as 60 in the brochure the 1^st opposite party had obtained the permission for 64 flats as per the building plan and permit. The 1^st opposite party has got right to add and reduce the number of apartments in the complex. This is within in the right of the 1^st  opposite party as provided in the agreement.
5. It was decided in the general body meeting of Federal fort residents association held on 9-12-2008 as Decision No.3 that an area of around 2000 Sq.ft on ground floor facing the PWD road of 3^rd block will be marked for commercial area to be utilized by M/s Ambas properties for running a super market or department store. It was pursuant to this decision that the 1^st opposite party constructed a commercial area but for the  said commercial area land earmarked as common recreation area and car parking area was not utilized.
6. Complainant is provided with stilt car parking facility.
7. As per the decision No.2 of the Federal fort resident’s association taken in general meeting swimming pool was not constructed. Moreover swimming pool was not part and parcel of the common amenities as provided in the agreement
8. All the necessary arrangements for the gymnasium were provided by this opposite party.
9. Maintenance room was not agreed to be provided by this opposite party . Anyhow the space provided in the office room is now being utilized for the said purpose.
10. Children’s play area is provided which is available between Block No.I and Block No II. If any improvement is to be made therein it is to be done by Owners Association.
11. Agreement provides for lifts and staircase alone. Two lifts are provided in Block No I, each for 6 persons and one lift each is provided in Block No. II & III capable of carrying 10 persons. Those are more than sufficient to cater to the needs of the residents. There were no stipulations in the agreement to provide lifts of any particular measurement.
12. Fully secured compound wall is provided on the all four sides. The potable water tanks facing and situated adjacent to main state highway is not remaining exposed to stray animals and strangers, as alleged.
13. 1^st opposite party has actually provided 16 feet wide pathway which is two way.
14. Burglar alarms are provided though there is no such condition as per the agreement
15. Door and window frame are actually made of imported Pincoda more acceptable and better quality as accepted by the Managing committee of Federal fort residents association. The agreement is to provide door frame of country wood alone.
16. 1^ST opposite party is not bound to provide Kotah stone flooring. Only polished kotah stones are used in the common corridors.
17. Open well is available in the property and instead of one bore well the 1^st  opposite party has actually dug three bore wells. The water from one bore well is sufficient enough to cater  the needs of the residents.
18. There are no stipulations for fixing solar water heater in the agreement. But 1^st opposite party has made provisions for fixing the solar water heater and Owners association can fix it if found necessary.
19. There was no promise for market rent during the period for delay in handing over the flat. The delay in construction was due to the reasons beyond the control of this opposite party.
20. The opposite party denied that the allegation that they had promised to the complainant to use teakwood and had not received any amount towards the same. 

The complainant has not raised any complaint   to this opposite party. Each and every point of construction had been checked by the complainant along with this opposite party and he satisfied of the perfect completion of the construction work. All the facilities and amenities stipulate in the agreement has been provided and the complainant had been perfectly satisfied, till recently. Complainant occupied the flat in the month of September 2010 and he had no complaint till April 2012, the date of filing of complaint. There is no deficiency in service and unfair trade practice. Hence the complainant is not entitled to get any amount of compensation for this.

1^st  opposite party filed additional version stating that as per resolution passed by the General Body meeting of Federal Fort Residents Association each and every allottees were directed to pay  an amount of Rs.100/- per square feet over and above the agreed amount rate as per the individual agreement to M/s.Ambas properties and 50% of increased rate is to be paid before 1^st week of January 2009 and the balance 50% is to be paid before 1^st week of March 2009 and it was also decided to  that there will be no change in payment schedule as per the individual agreement.  Since the flat purchased by the complainant is having the area of 970 sq.ft the complainant is liable to pay an amount of Rs.97000/- towards the additional payment as per the resolution passed. The complainant made additional payments in two installment on 26-10-09 and 20-9-2010. Actually complainant ought to have remitted the entire amount of Rs.97000/- before 1^st week of March 2009. This is only due to the negligence on the part of complainant. The complainant filed the above said complaint for illegal enrichment and to evade from the liability happened to be abused due to the highly belated payments as stated above.  Therefore the complaint is liable to be dismissed.

The contention of the 2^nd opposite party is that he has retired from the partnership firm as early on 15-6-2011 and there was a reconstitution of partnership deed. This opposite party is an unnecessary party to the complaint and there is no prima facie cause of action against this opposite party. The total claim is nothing but a unadultered falsehood. There is no deficiency or unfair trade practice on the part of 2^nd opposite party. Hence the complaint is liable to be dismissed with cost of this 2^nd opposite party.

Complainant, 1^st and 2^nd opposite parties filed their respective proof affidavits. Ext.A.9 and A.10 were marked from the side of complainant. Ext B.1 was marked from the side of the opposite party. Complainant was cross examined as PW.4

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM  PALAKKAD

Dated this the 11^th  day of  November  2015

Present   : Smt.Shiny.P.R. President

               : Smt.Suma.K.P.  Member                                              Date of filing: 07/05/2012   

                                                  (C.C.No.86/2012)       

K V Rajan Nair

S/o.P.Parameswaran Nair,

17D, RoopRekha, Mini Land,

Bhandup West,

Mumbai

Through his Power of Attorney Holder

Sri.K.Govindankutty Nair,

S/o.Late Narayanan Nair,

Raganjali, C17, Mythri Nagar,

Kallepully Post,

Palakkad.                                                                     -           Complainant

(By Adv.P.Anil) 

Vs

1.S.Gopinathan Nair &

 Managing Partners,

Ambas Properties,

3/516, Adam Plaza,

Municipal Junction,

North Paravoor,

Ernakulam – 683 513     

2.Biju Antony,

Managing Partners,

Ambas Properties,

3/516, Adam Plaza,

Municipal Junction,

North Paravoor,

Ernakulam – 683 513                

(By Adv.John John)

3.Anilkumar.M.C.

Ambass Properties,

Four N’s Building,

Chandranagar, Palakkad                                               -           Opposite parties

O R D E R

By Smt.Shiny.P.R.  President.

Brief facts of complaint.

The Complainant and his wife had purchased a flat  bearing No.5K on the fifth floor of Federal Fort Apartment from Opposite parties as per Sale deed No. 532/11 and 4139/11 of SRO Palakkad. The complainant was enticed into the purchase of flat by advertisement floated by the opposite parties in this behalf which assures extensive amenities, appended to the flat. The complainant was also shown the plan submitted by the opposite parties which have been approved of by the local authority i.e Palalakad Municipality. It is also admitted that even at the time of afore stated sale, the men of the opposite parties were seen engaged in some kind of work or the other in the compound and made the complainant believe that they are finishing of the work in respect of amenities promised for.

Complainant also submitted that even after 16 months, since the purchase of the flat, the amenities promised by the opposite parties are not provided for. Inspite of repeated request,  space for stilt car parking as promised earlier has not been earmarked.

  At last opposite party provided car parking adjoining the northern boundary wall of the whole compound and not a stilt car parking as promised earlier.  It would considerably reduce the width of drive way, through which the vehicle of occupants of flats have their ingress and egress.

The complainant also submits that stilt car parking are as promised, has not been provided. Fully secured compound wall not provided on the southern side of the compound. As a result potable water tanks facing and situated adjacent to main state high way, remains exposed to stray animals and strangers. Even though three bore wells have been dug,  only in one bore well motor/pumps have been fitted. Solar water heater and rain water harvesting pit are also not provided. The above acts of opposite parties to make attractive offers to the innocent general public and not to honor the same after the completion of the sale etc, are nothing but unfair trade practice. The complainant was put too much hardship and sufferings and has to put up with the inconveniences for the last almost a year. Hence the complaint,

Complainant sought for an order directing opposite parties to pay Rs.50,000/- as compensation for mental sufferings and to complete the construction of amenities  in accordance to the specifications made in the advertisement published by the opposite parties and the original plan EJBR/814/06-07/PW4 dated 9-2-2007 sanctioned by the local authority.

1^st and 3^rd opposite party filed version contending the following.

1. The opposite parties contended that they have complied with all the conditions and amenities as per the terms of the sale deed executed between the complainant  and 2^nd the opposite party
2. As per the sale deed executed the complainant and the 2^nd opposite party, the complainant was promised to allot only a shed for car parking and the same has been already provided. It is stated in the schedule of sale deed that the complaint is entitled to cover car parking only
3. The opposite party has complied with all the conditions and amenities as per the terms of Sale deed executed between the complainant and opposite party. The sale deed executed between the complainant and 2^nd opposite party is a comprehensive one and both the parties are liable to follow the terms of the said sale deeds alone. Since the car parking already allotted to the complainant as promised earlier, there is no occasion for the complainant to represent the grievance of car parking. It was decided in the general body meeting of Federal Fort Residents Association held on 9-12-2008 as Decision No.3 that an area of around 2000 sq.ft on ground floor facing the PWD road of 3^rd block will be marked for commercial area to be utilized by M/s Ambas properties for running a supermarket or department store. It was pursuant to this decision that the 1^st opposite party constructed a commercial area but for the said commercial area land earmarked as common recreation area and car parking area was not utilized.
4. The brochure published by the opposite parties contended for giving a general idea about the flats being constructed and it was not expected that all the details of the brochure will be complied with. Moreover the complainant purchased the said flat after the completion of entire work and with due satisfaction with regard to all the amenities provided.
5. Children’s play area is provided which is available between Block No.I and Block No II. If any improvement is to be made therein it is to be done by Owners Association.
6. Two lifts are provided in Block No I, each for 6 persons and one lift each is provided in Block No II & III capable of carrying 10 persons. Those are more than sufficient to cater the needs of the residents. The measurement given in the brochure relates to the space available for erecting the lift. It is not the size of the lift which is given in the brochure.
7. 1^st opposite party actually provided 16 feet wide path way which is two way.
8. Burglar alarms are provided
9. Door and window frame are actually made of imported Pincoda more acceptable and better quality as accepted by the Managing committee of Federal Fort Residents Association. There was no promise to provide teak wood frames.
10. The complainant inspected and satisfied the same, even before the execution of the sale deed.
11. Opposite party is not bound to provide Kotah stone flooring. There is no stipulation in the sale deed
12. Open wall is available in the property and instead of one borewell the opposite party has actually dug three borewells. The water from one borewell is sufficient enough to cater  the needs of the residents.
13. There are no stipulations for fixing solar water heater in the sale deed. But Opposite party has made provisions for fixing the solar water heater and Owners association can fix it if found necessary.

The complainant accepted the flat in question after due inspection and hence there is no merit in the allegations. The complainant has not raised any complaint   to this opposite party. There is no deficiency in service and unfair trade practice.

2^nd    opposite party filed version contending the following:

2^nd opposite party has retired from the partnership firm as early on 15-6-2011 and there was a reconstitution of partnership deed. This opposite party is an unnecessary party to the complaint and there is no prima facie cause of action against this opposite party. The total claim is nothing but a unadultered falsehood. There is no deficiency in service or unfair trade practice on the part of 2^nd opposite party. Hence complaint is liable to be dismissed with cost of this 2^nd opposite party.

Complainant and 1^st and 2^nd  opposite parties filed their respective proof affidavits. Ext.A.14 to A.17 are marked from the side of complainant. Power of attorney of Complainant was cross examined as PW.6

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM  PALAKKAD

Dated this the 11^th  day of November  2015

Present   : Smt.Shiny.P.R. President

               : Smt.Suma.K.P.  Member                                             Date of filing: 03/07/2012   

                                                  (C.C.No.118/2012)     

Sudhakaran,

Preetha,

Ambikapuram,

Palakkad

Working abroad at Ghana

Rep.by   his Power of Attorney Holder

Smt.Rugmini Hariharan,

W/o.Late C.G.Hariharan,

Preetha, Ambikapuram,

Palakkad                                                                      -           Complainant

(By Adv.P.Anil) 

Vs

1.S.Gopinathan Nair &        

 Managing Partners,

Ambas Properties,

3/516, Adam Plaza,

Municipal Junction,

North Paravoor,

Ernakulam – 683 513     

2.Biju Antony,

Managing Partners,

Ambas Properties,

3/516, Adam Plaza,

Municipal Junction,

North Paravoor,

Ernakulam – 683 513                                                     -           Opposite parties

(By Adv.John John)

O R D E R

By Smt.Shiny.P.R.  President.

Brief facts of complaint.

The predecessor in the interest of the complainant Sri.Suresh Yezhuvath had brought 1.22 % undivided share  over 72 cents of land situated in Sy.No 4111 to 4115 of  Palakkad III Village, Palakkad Taluk from Opposite party as per Sale deed No.8089/2007 of SRO Palakkad after paying valid sale consideration. It was further covenanted in the said sale deed that apart from the afore stated share over the land a flat admeasuring  971 sq.ft would be built by the opposite parties for and on behalf of the purchaser at the cost and expenses of the purchaser. Cost of the said construction was mutually arrived at and a payment schedule was also drawn up .

The  complainant submit that in the midst of these developments, the predecessor in interest Sri.Suresh Yezhuvath transferred his right, title and interest obtained above, in the name of the complainant vide sale deed No.9176/2008 of SRO Palakkad for valid consideration. Both complainant and his predecessor-in-interest had strictly complied with the time schedule stipulated. The opposite party even forced to pay escalation cost at the instance of the opposite party. The opposite parties have promised that the construction of the flat would be completed by 28-12-2008.

            The opposite party has handed over the flat to the complainant only on 1^st week of September without obtaining the electricity, water connection and house   number etc. The said construction of the flat No.4E and the amenities appended thereto are far from satisfactory. Complainant further submitted that the legally sanctioned building plan has been given a complete go-by and amenities promised as per brochure had not been provided even after 40 months from stipulated date of completion of the construction. Opposite party has built 64 flats instead of 60 flats with view to make unjust enrichment. It  would add burden to the common amenities and right of the flat owners including the complainant. The opposite party sold a portion of the land, which was earmarked as common recreational area and car parking are under Block III. The complainant also submits that swimming pool, gymnasium fitments, maintenance room, children’s play ground  are not provided. Lift provided does not confirm to standards and size specified in the brochure and plan, i,e. length and width of 6 feet 3 inches was promised, instead lifts of lesser size have been installed. Fully secured compound wall not provided on the southern side of the compound. As a result potable water tanks facing and situated adjacent to main state high way, remains exposed to stray animals and strangers. 16 feet wide two way drive main pathway not provided. Burglar alarm not installed.  Door and window frames are made of country wood, instead of teakwood frames as promised. Kotah stone flooring not done on emergency exit staircases. On the common corridors where the Kotah stones have been laid, it has not been polished or cleaned. Eventhough three borewells have been dug, pumps and motors fitted only in one borewell. Solar water heater and rain water harvesting pit are not provided. Market rent promised during the period of delay in handing over flat has not been given. The flat was supposed to be handed over on 28-12-2008 but was given to the complainant on 1^st   week of September 2010 that too without obtaining necessary statutory clearance. Therefore the complainant is entitled to get the market rent at the rate of Rs.4000/- per month for the period of said 20 months with 12 % interest.  The opposite party even at this belated stage has not cared to hand over the check list as stipulated earlier to satisfy and convince the complainant that amenities as promised as provided for. The services rendered by the opposite party are far from standards and they have adopted unfair trade practice to make illegitimate gains. By the act of opposite parties complainant sustained severe mental hardship and agony. Hence the complaint. Complainant prays for an order

1.  directing opposite parties to pay Rs.96,000/- as market rent for 20 months with interest, Rs.1,50,000/- to  the burden caused by the construction of additional 4 flats and Rs.2,00,000/-  for the mental agony suffered  to the complainant.
2. Directing the opposite party to complete the construction of amenities in accordance to the specifications made in the brochure and the original plan dated 22/6/2007 sanctioned by the local authority and

3. Cost of  the complaint

1^st Opposite party filed version contending the following.

1. The complaint is not maintainable in law. The complainant does not come under the definition of the Consumer Protection Act. The complaint is barred by limitation. Since there is no contract between the complainant and this opposite party, the complainant is not entitled to file complaint before this forum. The opposite party admitted the Sale deed No.8089/2007 of SRO Palakkad executed to Suresh Yezhuvath. After execution of sale deed on 28-3-2007 an agreement was executed between the Suresh Yezhuvath and this opposite party to construct a flat with the extent of 970 Sq. Ft. This opposite party has complied with all the conditions and constructed a flat for the complainant as per the terms of the agreement.
2. An agreement was executed between  Suresh Yezhuvzth and the 1^st opposite party on 28-3-2007 covering all the details regarding the construction of the flat. It is specifically stated in the said agreement that the agreement is to recall the totality of understanding and terms agreed between the parties and that the agreement supersedes all prior representation, communications and understanding that may have existed between the parties as regards the subject matter of this agreement including a matter with regard to amenities, completion date, specifications and the like. Opposite party submitted that after the execution of this agreement, the said agreement alone will prevail and that whatever understating was made earlier is having no relevance. The Brochure published by the 1^st opposite party was intended for giving a general idea about the being constructed. At the time of preparation of the brochure the cost proposed by the opposite party was Rs.1600/- per Sq. Ft. After the publication of the brochure, a group of persons numbering about 40, who were the staff of Federal Bank and their relatives approached the 1^st opposite party and negotiated the purchase with opposite party. They bargained on the cost and suggested certain measures reducing the cost and incorporating those suggestions, the agreement was prepared. Cost was reduced to Rs.1150/- per sq.ft. on the basis of the deviations made from the brochure. The agreement dated 28-3-2007 executed between the Suresh Yezhuvath and the 1^st opposite arty is a comprehensive one and 1^st opposite party is liable to follow the conditions of the said agreement.
3. Opposite party submitted that the constructions of the flat was over by the month of August 2010.They admitted that there are some delay in completing the construction but it was not due to the deficiency or negligence on the part of this opposite party. There was unexpected delay in getting necessary permissions and licenses from the official authorities and the said fact has resulted in the delay in completing the construction. Moreover amendments were made in the Municipality Building Rules in the year 2007 which led to changes in the building plan on various counts and that also led to the delay. The Federal Fort Residents Association, body of the flat owners including the complainant, had taken note of the delay occurred due to unforeseen causes and has condoned the delay and had approved the acts of this opposite party. The General body meeting of the Association held on 9-12-2008 took note of the reasons for the delay and the period for completion of construction was extended to 31-3-2009. Later also time was extended periodically by the Association. The application for NOC was sanctioned after 7 months of its submission. Moreover the stoppage of sand mining, lorry strike which prolonged for more than 3 months, prolongation of monsoon for a long period in 2008 also resulted in the delay of completion of the work. The delay was not willful. The complainant was approved in time reading the causes for delay and she had approved the same.
4. There was no agreement between the complainant and this opposite party that this opposite party will obtain the electric connection, water connection and house number. It is the duty of the complainant to avail the water connection, electric connection, power cable, electricity meter and deposit along with department charges.  It is specifically stated in clause 6(a)of the agreement.
5. Though the number of flats was given as 60 in the brochure the 1^st opposite party had obtained the permission for 64 flats as per the building plan and permit. The 1^st opposite party has got right to add and reduce the number of apartments in the complex.  This is within  the right of the 1^st opposite party as provided in the agreement.
6. It was decided in the general body meeting of Federal Fort Residents Association held on 9-12-2008 as Decision No.3 that an area of around 2000 sq.ft on ground floor facing the PWD road of 3^rd block will be marked for commercial area to be utilized by M/s. Ambas properties for running a supermarket or department store. It was pursuant to this decision that the 1^st opposite party constructed a commercial area but for the construction of the said commercial area land earmarked as common recreational area and car parking area was not utilized.
7. The complainant has provided with stilt car parking facility. Car parking area has been provided as stipulated. Now there are stilt car parking facility for 54 cars and covered car parking facilities are provided for 10 cars. Construction work of the roofing of the 10 covered car parking could not be completed only due to a suit filed by the Federal Fort Owners association before the Munsiff court as O.S 545/2011. All the materials for the construction of the covered car parking arranged at the place and the work can be completed in a couple of days.
8. As per the decision No.2 of the Federal Fort Residents Association taken in general body meeting swimming pool was not constructed. Moreover swimming pool was not part and parcel of the common amenities as provided in the agreement
9. All the necessary arrangements for the gymnasium were provided by this opposite party. If the complainant wishes to have any particular fitment, this opposite party shall provide if it is reasonable.
10. Maintenance room was not agreed to be provided by this opposite party. Anyhow the space provided in the office room is now being utilized for the said purpose.
11. Children’s play area is provided which is available between Block No.I and Block No.II. If any improvement is to be made therein it is to be done by Owners Association.
12.  Two lifts are provided in Block No I, each for 6 persons and one lift each is provided in Block No II & III capable of carrying 10 persons. Those are more than sufficient to cater to the needs of the residents. There was no stipulation in the agreement to provide lifts of any particular measurement.
13. Fully secured compound wall is provided on the all four sides. The potable water tanks facing and situated adjacent to main state highway is not remaining exposed to stray animals and strangers, as alleged.
14.   1^st opposite party  has actually provided 16 feet wide pathway which is two way.
15. Burglar alarms are provided though there is no such condition as per the agreement
16. Door and window frame area actually made of imported Pincoda more acceptable and better quality as accepted by the Managing committee of Federal Fort Residents Association.   The agreement is to provide door frame of country wood alone.
17. 1^ST opposite party is not bound to provide Kotah stone flooring .Only polished kotah stones are used in the common corridors.
18. Open well is available in the property and instead of one bore well the 1^st  opposite party has actually dug three bore wells. The water from one bore well is sufficient enough to cater to the needs of the residents.
19. There are no stipulations for solar water heater and rain water harvesting pit in the agreement. But 1^st opposite party has made provisions for fixing the solar water heater and Owners association can fix it if found necessary.
20. There was no promise for market rent during the period of delay in handing over the flat .The delay in construction was due to the reasons beyond the control of this opposite party.

Each and every point of construction had been checked by the complainant along with this opposite party and he satisfied of the perfect completion of the construction work. All the facilities and amenities stipulated in the agreement has been provided and the complainant had been perfectly satisfied, till recently. There is no deficiency in service and unfair trade practice. Hence the complainant is not entitled to get any amount of compensation for this.

1^st  opposite party filed additional version stating that as per resolution passed by the General Body meeting of Federal Fort Residents Association each and every allottees were directed to pay  an amount of Rs.100/- per square feet over and above the agreed amount rate as per the individual agreement to M/s.Ambas properties and 50% of increased rate is to be paid before 1^st week of January 2009 and the balance 50% is to be paid before 1^st week of March 2009 and it was also decided   that there will be no change in payment schedule as per the individual agreement.  Since the flat purchased by the predecessor interest of the complainant Suresh  Yezhuvath is having a total area of 971 sq.ft the predecessor in the interest is liable to pay an amount of Rs.97100/- towards the additional payment as per the above said resolution. The predecessor’s interest of the complainant Suresh Yezhuvath or complainant is failed to pay the additional payment till this date. This is only due to the negligence on the part of predecessor interest or the complainant.  The complainant filed the complaint to evade from the said payment of Rs.97100/-. As per the agreement apartment shall be delivered to the allottee within 15days from the completion or after receipt of the entire payment as provided herein from the allottee, whichever is earlier. Eventhough complainant failed to remit the entire payment, this opposite party handed over the key to the complainant as and when the construction was completed.  Therefore the complaint is liable to be dismissed

The contention of the 2^nd opposite party is that 2^nd opposite party has retired from the partnership firm as early on 15-6-2011 and there was a reconstitution of partnership deed. This opposite party is an unnecessary party to the complaint and there is no prima facie cause of action against this opposite party. The total claim is nothing but an unadultered falsehood. There is no deficiency or unfair trade practice on the part of 2^nd opposite party. Hence the complaint is liable to be dismissed with cost of this 2^nd opposite party.

Complainant, 1^st and 2^nd opposite parties filed their respective proof affidavits. Ext.A18 to 21   are marked from the side of complainant. Ext.B1 is marked from the side of the opposite party. Power of attorney of Complainant was cross examined as PW.7

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM  PALAKKAD

Dated this the 11^th  day of November 2015

Present   : Smt.Shiny.P.R. President

               : Smt.Suma.K.P.  Member                                            Date of filing: 02/07/2012   

                                                  (C.C.No.119/12)         

Sam Nair

S/o.V.C.Narayanan Nair,

3904 Lost Springs Drive,

Calabasas CA - 91301

Rep.by   Power of Attorney Holder

Sri.Kesavankutty Madathil,

S/o.V.C.Narayanan Nair,

Theertham, Near VGHS, Anicode

Chittur – 678 101                                                           -           Complainant

(By Adv.P.Anil) 

  Vs

1.S.Gopinathan Nair &

 Managing Partners,

Ambas Properties,

3/516, Adam Plaza,

Municipal Junction,

North Paravoor,

Ernakulam – 683 513     

2.Biju Antony,

Managing Partners,

Ambas Properties,

3/516, Adam Plaza,

Municipal Junction,

North Paravoor,

Ernakulam – 683 513                

(By Adv.John John)

3.Anilkumar.M.C.

Ambass Propeties,

Four N’s Building,

Chandranagar, Palakkad                                               -           Opposite parties

O R D E R

By Smt.Shiny.P.R.  President.

Brief facts of complaint.

The Complainant and his wife had purchased a flat  from Opposite party as per Sale deed No.8470/2011 of SRO Palakkad by paying valid sale consideration. At the time of execution of sale deed the construction of flat was nearly completion. The execution of sale deed was preceded by an agreement between the parties wherein it was covenanted that the opposite parties would hand over the flat before 31-7-2010 subject to a further grace period of three months.

The complainant purchased the flat and the undivided share of land on which it is situate by reading a brochure published by the opposite parties in which a graphic description of the flats and the amenities appended to the same are drawn. The complainant readily paid the whole consideration even before the flat was physically handed over.

Eventhough the sale deed was executed in the name of complainant and his wife on   24-11-2010, he was not able to occupy the flat, for the mutation in revenue and municipal records were not affected so as to change the same to his name. He was not even been able to obtain electricity connection, residential/possession certificate etc, and as such did not prefer to accept the flat without the said statutory hurdles being cleared. At last several exchange of letters the defendants reluctantly complied with the demands and handed over the flat by effecting change in revenue and municipal records on 3-2-12.The complaint was constrained to accept the flat in the condition as it was, for he had  already paid the entire sale consideration much prior to the  aforesaid. He had registered his protest with the opposite parties for delayed handing over of the flat that too without completing the works of the common amenities appended there to. The plan and brochure promised a two way drive way by the opposite parties making an attempt to erect car shed on the eastern and western sides of Block No. III, which would result in shrinking of 16 feet drive way. This is in contravention to the promises held out in the original scheme of stilt car parking to the flat owners. The opposite parties have not handed over the writing diagram, warranty documents for the accessories viz electric meter etc., so far. In the  event of any defect or damage to the said accessories, the complainant would be left with no remedy to redress the said grievances.

The said grievances are in respect of amenities promised by the opposite party, but which has not yet been provided for  children’s play ground, lift provided is not in accordance to standard specified and agreed between the parties, 16 feet wide two way drive lane, burglar alarm, teak wood frame, kotah stone flooring on emergency staircase, solar water heater and rain water harvesting pit. Complainant is also submitted that cracks have been developed between the main door frame and wall and also on east and west side of bed room wall. The power cable drawn from ground floor to the top remains uncovered and therefore is exposed to grave risk and danger. Complainant was put too much hardship and sufferings and has to put up with the inconveniences for the last almost a year.

      Hence the complaint. 

Complainant ought for an order directing opposite parties to pay Rs.5,00,000/- as compensation for mental agony caused due to the delay of 15 months in the delivery of flat and Rs.2,00,000/- for not providing full common amenities a promised through brochure and the plan mentioned in the sale deed to  hand over the writing diagram, warranty documents of accessories etc. installed in the flat and directing opposite party to complete the construction of amenities in accordance to the specifications made in the brochure and the original plan.

1^st and 3^rd opposite party filed version contending the following.

1. The complainant  and his wife had jointly purchased a flat constructed by the opposite party  vide Sale Deed No.8470/10 of SRO Palakkad preceded an agreement dated      15-3-2010 executed between the complainant and opposite party.
2. The brochure published by me intended for giving a general idea about the flats being constructed and it was not expected that all the details of the brochure will be complied with. At the time of preparation of the brochure the cost proposed by the opposite party was Rs.1600/- per sq.ft. After publication of brochure, a group of persons numbering about 40, who were the staff of Federal Bank and their relatives approached the 1^st opposite party and negotiated the purchase with opposite party. They bargained on the cost and suggested certain measures reducing the cost and incorporating those suggestions, the agreement was prepared. Cost was reduced to Rs.1150/- per sq.ft.on the basis of the deviations made from the brochure. Before the execution of the agreement dated 15-3-2010 the complainant personally inspected the flat and got satisfied the condition of flat and amenities provided therein. The sale deed was executed on 24-11-2010 i,e after 8 months from the date of the sale agreement. The complainant had  not arised any objection with respect to the flat other than the present complaint preferred by the complainant. If there is any defects in the construction or the amenities provided in the flat, the complainant could have rescinded the agreement executed between the complainant and the opposite party. The complaint filed by the complainant is only for illegal enrichment and to harass the opposite party for unknown reasons. The complainant raised the allegations in the present complaint two year after the execution of the sale deed.
3. Its admitted fact that the plan and brochure promises a two way drive way. Eventhough the car sheds have been erected on the eastern and western side of Block III, the two ways drive way will not be obstructed and hence it does not amount to contravention to the promises. Since the accessories such as electric meter etc, are bought in bulk, it is not practical to hand over the warranty documents for same to each and every flat owners individually. All the warranty documents of the accessories and the writing diagram are handed over to the Federal Fort Apartment Owners Association.
4. Children’s play area is provided which is available between Block No.I and Block No II. If any improvement is to be made therein it is to be done by Owners Association.
5. Two lifts are provided in Block No I, each for 6 persons and one lift each is provided in Block No II & III capable of carrying 10 persons. Those are more than sufficient to cater to the needs of the residents. The measurement given in the brochure relates to the space available for erecting the lift. It is not the size of the lift which is given in the brochure.
6. 1^st opposite party has actually provided 16 feet wide path way which is two way.
7. Burglar alarms are provided
8. Door and window frames are actually made of imported Pincoda more acceptable and better quality as accepted by the Managing committee of Federal Fort Residents Association. The complainant inspected and satisfied the same, even before the execution of the sale deed.
9. Opposite party is not bound to provide Kotah stone flooring .There is no stipulation in the agreement  and sale deed
10. Open well is available in the property and instead of one borewell the 1^st opposite party has actually dug three borewells. The water from one borewell is sufficient enough to cater the needs of the residents.
11. There are no stipulations for fixing solar water heater in the agreement. But 1^st opposite party has made provisions for fixing the solar water heater and Owners association can fix it if found necessary.

The complainant accepted the flat in question after due inspection and hence there is no merit in the allegations. The complainant has not raised any complaint   to this opposite party. There is no deficiency in service and unfair trade practice.

2^nd opposite party filed version contending the following:

2^nd opposite party has retired from the partnership firm as early on 15-6-2011 and there was a reconstitution of partnership deed. This opposite party is an unnecessary party to the complaint and there is no prima facie cause of action against this opposite party. The total claims nothing but an unadultered falsehood. There is no deficiency or unfair trade practice on the part of 2^nd opposite party. Hence complaint is liable to be dismissed with cost of this 2^nd opposite party.

Complainant and opposite parties filed their respective  proof affidavits. Ext.A.27 to 33 are marked from the side of complainant.Ext.B1 marked from the side of opposite party.  Power of attorney of Complainant was cross examined as PW.10.

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM  PALAKKAD

Dated this the 11^th  day of August  2015

Present   : Smt.Shiny.P.R. President

               : Smt.Suma.K.P.  Member                              Date of filing: 05/11/2012   

                                                  (C.C.No.203/12)         

Ravikumar.P

S/o.Parameswaran Nair,

Sreedevi Nivas,

Palachira, Elapully, Palakkad,                                         -           Complainant

(By Adv.P.Anil) 

Vs

1.Anilkumar.M.C.

S/o.C.R.C.Nair,

M/s.Ambas Properties,

Four N’s Building,

Chandranagar, Palakkad 

2.S.Gopinathan Nair

 Managing Partners,

Ambas Properties,

3/516, Adam Plaza,

Municipal Junction,

North Paravoor,

Ernakulam – 683 513     

3.Biju Antony,

Managing Partners,

Ambas Properties,

3/516, Adam Plaza,

Municipal Junction,

North Paravoor,

Ernakulam – 683 513                                                     -           Opposite parties

(By Adv.John John)

O R D E R

By Smt.Shiny.P.R.  President.

Brief facts of complaint.

On 2-9-06 the complainant along with several others had entered into an agreement with the opposite parties wherein opposite parties promised to build flats for the complainant and others. The complainant and others were represented by an organization named Federal Fort Residents Association in the agreement and complainant paid Rs.200000/- towards the sale of land and construction of flat. Subsequently on 23-3-07 an individual agreement was entered between the complainant and opposite parties and also registered a sale deed No. 5898/07 of SRO Palakkad to effectuate the sale of undivided share of  land and also the flat to be built thereon. 

Complainant had strictly complied with the time stipulated payment schedule. Complainant has paid the full amount to the opposite party. Complainant submitted that apart from the agreed amount, contrary to the stipulations in the agreement, complainant had paid a further amount of Rs.97100/- towards the escalation charges of construction. First agreement dated 2-9-2006, entered into between the Federal Fort Residents Association and the opposite parties, it has been promised that the flat would be handed over by 30-12-2008 but persistent requests it was handed over only on 25-11-2010. The said agreement stipulates that the period of completion of the building exceeds two years from the date of agreement the opposite party shall pay compensation to the purchasers by giving them the market rent. There occurred a huge delay of almost two years in handing over the flat and that too without the completion of amenities expected to be appended there to. But the opposite party did not pay anything to the complainant.

            Therefore the complainant is entitled to get the market rent for the period from          1-1-2009 to 25-11-2010. The market rent is modestly estimated at Rs.4500/-  per month. Hence the opposite party is liable to pay Rs.90000/- for twenty months and Rs.10000/- for mental agony to the complainant. Complainant also submitted that he had subscribed to the project by availing loan from the Federal Bank. The loan was advanced by the bank on the basis of tripartite agreement entered into among the complainant, federal bank and the opposite party. Due to the huge delay caused in handing over of flat, complainant was constrained to pay penal interest to the bank and same occasioned only account of the negligence of the opposite party to hand over the flat in time. By the act of opposite parties complainant sustained severe mental hardship and agony. Hence the complaint. Complainant prays for an order

1.  Directing opposite parties to pay Rs.90,000/- as market rent and Rs.10,000/-  for the mental agony suffered to the complainant.
2. Directing the opposite party to complete the construction of amenities in accordance to the specifications made in the brochure and the original plan EJBR/814/06-07/PW4 dated 9-2-2007 sanctioned by the local authority.

1^st and 2^nd Opposite party filed version contending the following.

1. Complainant has no locus standi to file the complaint. The complaint is not at all maintainable since it is barred by limitation. Moreover the 1^st opposite party is seen represented by its Managing Agent  Mr.Anil kumar. Mr.Anil kumar is not a managing agent of M/s Ambas properties; he is General Manager of the 1^st opposite party. 1st opposite party has not passed any resolution authorizing Mr.Anil kumar to represent the firm. Since M/s.Ambas properties is not represented by a proper person, the complaint is bad for non jointer of necessary party.
2. Since the complainant filed a civil suit as OS.402/12 against the opposite parties herein for an order for prohibitory injunction restraining the opposite parties from indulging in any kind of construction activities in the shop room and restraining the opposite parties from erecting a shed in the flat premises, this forum has no jurisdiction to entertain the complaint. This fact is suppressed by the complainant.
3. Opposite party denied the entire allegation leveled against them. The complainant has no right to get any relief from the opposite parties. Complainant occupied the flat in the month of September 2010 and he had no complaint till the date of filing this complaint.
4. Opposite party published a brochure with regard to the proposed construction of work. The brochure published by the opposite party was intended for giving a general idea about the flat being constructed and it was not expected that all the details in the brochure will be complied with. At the time of preparation of the brochure the cost proposed by the opposite party was Rs .1600/-per Sq. Ft. After the publication of the brochure, a group of persons numbering about 40, who were the staff of Federal Bank and their relatives approached the 1^st opposite party and negotiated the purchase with opposite party. They bargained on the cost and suggested certain measures reducing the cost and incorporating those suggestions, the agreement was prepared. Cost was reduced to Rs.1150/- per sq.ft.on the basis of the deviations made from the brochure. So naturally there were deviations from the brochure specification. The complainant and several others entered into agreement with opposite parties on 2-9-2006 wherein the opposite parties promised to build a flat   for the complainant and others.   The complainant purchased the flat constructed by the opposite parties vide registered sale deed No. 588/07 of SRO Palakkad preceded by an agreement dated 28-3-07. The construction of the flat owned by the complainant almost over even before the date of agreement. Before the execution of the said agreement dated 28-3-07 the complainant personally inspected the flat and got satisfied with the condition of the flat and the amenities provided therein. If there is any defect in the construction or the amenities provided in the flat the complainant could have rescinded the agreement executed between the complainant and the opposite parties. After individual agreement come in to existence, the agreement supersedes all the prior representations.
5. The complainant has not raised any complaint   to this opposite party. Each and every point of construction had been checked by the complainant along with this opposite party and he satisfied of the perfect completion of the construction work. All the facilities and amenities stipulate in the agreement has been provided and the complainant had been perfectly satisfied, till recently. Complainant occupied the flat in the month of September 2010 and he had no complaint till April 2012, the date of filing complaint. There is no deficiency in service and unfair trade practice.

The contention of the 3^rd opposite party is that he has retired from the partnership firm as early on 15-6-2011 and there was a reconstitution of partnership deed. This opposite party is an unnecessary party to the complaint and there is no prima facie cause of action against this opposite party. The total claim is nothing but an unadultered falsehood. There is no deficiency or unfair trade practice on the part of 2^nd opposite party. Hence the complaint is liable to be dismissed with cost of this 2^nd opposite party.

Complainant and opposite parties filed their respective proof affidavits. Ext.A.25 and 26 were marked from the side of complainant. Ext.B1, B2 and B3 were marked from the side of the opposite party. Complainant was cross examined as PW 9. 2^nd opposite party examined as DW1 and two witnesses of opposite parties  are examined as DW2 and DW3.

Expert commissioner was appointed to inspect the property and file detailed report. Commissioner  inspected the property as per the request of complainant and opposite parties and he filed two reports. Those reports were marked as Ext C1 series. Objection to first commission report  was filed by the opposite parties.

The following issues are considered

1. Whether the complaint is maintainable or not?
2. Whether there is any deficiency in service or unfair trade practice on the part of opposite parties in providing common amenities to the complainants?
3. Whether there is any delay in handing over the possession of flats to the complainants?

4. If so, what is the relief?

Issue No 1

Heard both parties. We have perused the documents produced by both parties. Main allegation of the complainants is that  common amenities were not provided as per the plan and brochure. National Commission in Raghava Estate Ltd. Vs. Vishnupuram Colony Welfare Association (IV 2012 CPJ 36 (NC) held that  where there is immovable property and amenities promised by opposite party were not provide it can be construed as continuing cause of action and it cannot be said to be barred by time.  In these circumstances we are of the opinion that the complaints are filed well within the period of limitation. Hence all the complaints are maintainable before the Forum. At the time of argument opposite parties submitted that the complainants purchased the apartments for letting it out for rent or for investment purpose. But the opposite parties are not taken such pleadings in their version.  Hence it cannot be taken into consideration. Therefore 1^st issue found in favour of complainant.

Issue No 2.

Allegations of the complainants are that  opposite parties not provided common amenities such as car parking, swimming pool, maintenance room, modern gymnasium children’s play ground, lift, compound wall, motorized bore well, burglar alarm, water heater, Sewage treatment plant and  16 ft wide pathway. Opposite parties submitted that they were provided all the amenities as per agreement.

In these circumstances firstly we have to decide whether the agreement or brochure and plan will prevail in this matter. It is seen that all complainants except complainant in        CC. 86/12 executed the individual Ext B1 agreement with opposite parties. At the time of cross examination almost all complainants admitted the existence of individual agreement.  It is specifically stated in the said agreement that the agreement is to recall the totality of understanding and terms agreed between the parties and that the agreement supersedes all prior representation, communications and understanding that may have existed between the parties as regards the subject matter of this agreement including  matter with regard to amenities, completion date, specifications and the like. Complainants miserably suppressed the existence of such agreement in their complaint and chief affidavit. In the above circumstances we are of the opinion that individual Ext.B1 agreement executed between complainant and opposite parties had the priority over the other representations and statements.

Next question to be answered that whether the opposite parties provided all the amenities as per individual Ext B1 agreement. After executing the individual agreements, on   9-12-2008 some decisions were taken in the general body meeting held by Federal Fort Residents Association. At the time of cross examination, most of the complainants admitted this fact and deposed that they were not taken any steps to rescind the decisions taken on that day. In the above circumstances we are of the opinion that decisions are binding all  the complainants. Then we have to look into the amenities provided by the opposite parties.

Commissioner inspected the property and filed detailed report.

1. As per Commission  reports it is seen that stilt car parking facility are provided to all the complainants except complainant in CC.86/12.Commissioner also reported that Complainant in CC.86/12 Rajan Nair has not been provided car parking facility inside stilt floor eventhough separately paid for.
2.  As per individual Ext.B1 it is seen that there is no stipulation to provide swimming pool. Apart from this it is seen that in  Ext.B3, Federal Fort Apartment Residents Association  taken a decision in general body meeting the proposal of construction of swimming pool is cancelled.
3. As per commission reports, opposite party provided space for maintenance room in their office room. 
4. As per commission reports kotah stone is used for staircase steps and common corridors. Some areas require final grinding and polishing, some areas require cleaning. Individual Ext.B1 agreement shows that kotah stone flooring was only on lobby, corridors and staircases.
5. Commissioner reported that for gymnasium a closed area with light roofing was shown on the terrace floor of II^nd block. On verification of Ext B1 agreement it is seen that there is no stipulation to provide fitments/equipments for gymnasium.
6. As per Commission report it is seen that opposite party provided four lifts, two lifts in Bock No.I, one lift in Block No II and one lift in Block No III. Opposite party submitted that in Block No.I two lifts of 6 persons capacity is provided. In Block No.II one lift of 8 persons capacity provided and Block No.III one lift of 10 persons capacity is provided. In Ext.B1 agreement there is no stipulation about the size of lift.  
7. Opposite parties submitted that out of the three borewells, two borewells are not motorized. One open well is also situated in the premises with sufficient water. Commissioner also reported that motor in one borewell is installed and found in working condition; water is available in sufficient quantity. At the time of cross examination complainants deposed that sufficient water is there in the borewell as well as open well. No scarcity of water.
8. On perusal of Ext.B1 it is seen that there is no stipulation for solar water heater.       Eventhough there is no stipulation in the agreement, as per commission report it is seen that opposite parties provided necessary arrangements for installing solar water heater. 
9. Commissioner reported that inside the security room provisions for burglar alarm is arranged but burglar alarm is not seen provided. Commissioner also reported that arrangements made include a power supply unit, distribution console, distribution wiring to individual rooms et., but requires monitory and operation unit and the soft ware is to be installed. Opposite party submitted that even though there is no provision in the agreement, provisions for burglar alarm provided for.
10. Opposite parties contended that as per individual Ext.B1 agreement there is no stipulation for teak wood doors and window frames. If the complainants are in need of teak wood doors and window frames the additional cost should be given as per the agreement. Complainants in CC.58/12 and  CC.75/12 submitted that they had paid extra amount for teak wood doors. Opposite party denied this allegation. The complainants not produced any document to show that they had paid extra amount for teak wood doors and window frames.
11. In the case of Sewage Treatment Plant commissioner reported that all drains and WC closet outlets are connected to the Sewage Treatment Plant and affluent is drained outside the compound to the northern canal. The commissioner take sample of outlet water and checked and found foul smelling and dirty. Commissioner opined that operation  and periodical maintenance are not properly carried out. At the same time he reported that the design particulars, technical manuals etc. are not available and in the absence of these he is not a position to make further comments about STP. In the above circumstances in the case of Sewage Treatment Plant we cannot attribute deficiency in service on the part of opposite parties in relying upon the commission report. All complainants deposed at the time of cross examination that  they have paid Rs.1000/- each per month to Federal Fort Owners Association. All the maintenance of the STP is done by the Association. DW.2  also deposed that the maintenance of STP is done by the Association. So the Association has the duty to make periodical maintenance to STP.
12. Commissioner reported that in between Block No.I and II an area has been earmarked for children play ground. But this area is sloping down towards north with hard pavement tiles and uneven and it is also situated in drive way for Block No.I and II and  it is not suitable for a play ground. In the above circumstances we are of the view that the above children’s play ground shall be protected to ensure the motor vehicle do not enter in to the children’s play ground and make the ground is suitable for playing the children by leveling the ground.  Opposite parties have the liability to provide suitable play ground for children.
13.  In the case of compound wall  commissioner reported that there is no compound wall on the southern side. There is a water tank and sump in front of the building and the top covering to the tank are found exposed and the tank is not adequately covered and there is possibility of water getting contaminated with dust and other impurities. In these circumstances we are of the opinion that the front water tank/sump should be covered and protected from the dust and other particles.  At the time of argument the opposite parties undertaken to protect the water sump by erecting ornamental barricade which prevents any sorts of stepping over these. 
14. Complainants alleged that the opposite party sold a portion of the land, which was earmarked as common recreational area and car parking are under Block III. Ext B.3 shows that it was decided in the general body meeting of Federal Fort Residents Association held on  9-12-2008 that an area of around 2000 sq.ft on ground floor facing the PWD road of 3^rd block will be marked for commercial area to be utilized by M/s.Ambas  properties for running a super market or department store. The opposite party submitted that   for the said commercial area land earmarked as common recreation area and car parking area was not utilized. Some of the complainants admitted at the time of cross examination that there was an association named Federal Fort Residents Association and that association had taken decisions in Ext.B3. Members of the Association not taken any steps to rescind the decisions at the time of general body meeting. Hence these decisions are binding all the members of the association. Hence we cannot attribute deficiency in service on the part of opposite parties. 
15. Commissioner reported that the width of the entrance point is more and it is getting reduced to the northern side and minimum distance is 15 feet. There is a passage with varying distance between the building and compound wall and also there are a number of man hole with covers, three number of trees, protrusions of the building etc. in this space. A clear 16 feet way is not seen provided. As per individual Ext.BI agreement there was stipulation that they will be provided 16 feet wide path way. By not providing 16 feet way to the complainants, opposite parties committed unfair trade practice. This is one of the necessary common amenities to be provided by opposite parties to complainants. Opposite parties have the liability to provide 16 feet wide path way throughout the premises. Opposite parties failed to provide these amenities to the complainants.
16. Next allegation of the complainants is that opposite party has built 64 flats instead of 60 flats with view to make unjust enrichment. The building of additional four flats is contrary to the promise made by the opposite party and it would add burden to the common amenities and right of the flat owners.  As per clause 8(h) of individual Ext.B1 agreement it is clear that opposite parties have the right to redesign the complex by adding or reducing the number of apartments in the complex. But it is true that  it would considerably reduce the parking area of each complainant in Block No.III. Opposite parties ought to have made additional arrangements for the additional four flat owners. Complainants in CC.68/12 and 69/12 are residing at the Block No.III. Hence by the act of the opposite parties these complainants sustained physical hardship and mental agony. So opposite parties are liable to pay compensation for the complainants in CC.68/12 and 69/12 for burden caused due the construction of four flats. Other complainants are not entitled to get compensation for burden caused due to the construction of additional flats. It is true that complainants in CC.68/12 and 69/12 whose apartments are at Block No.III are provided stilt car parking, they have some inconvenience for parking the car due to the construction of four additional flats in this Block. This was also reported by commission in his report. So for the inconvenience caused to these complainants the opposite parties have the liability to pay compensation to the complainants in CC.68/12 and 69/12.

Ext.C1 series  expert commissioner reports and other available evidence show that the opposite parties failed to provide  children’s play ground, compound wall on southern side and 16 ft. wide path way throughout the premises instead they constructed  additional 4 flats.

In the case of warranty documents of the accessories and the writing diagram opposite submitted that all the  documents  are handed over to the Federal Fort Apartment Owners Association. So complainants can approach Federal Fort Apartment Owners Association if there is any necessity of such documents.

Issue No.3

Opposite party submitted that the constructions of the flat was over by the month of August 2010.They also admitted that there are some delay in completing the construction but it was not due to the deficiency or negligence on the part of this opposite party. No evidence is adduced by the opposite parties to prove that the delay was caused due to the reason beyond their control. The General body meeting of the Association held on 9-12-2008 extended the period for completion of construction up to 31-3-2009. Ext.B3 document proves this fact. Some of the complainants admitted that there was an association named Federal Fort Residents Association and also the decision taken by the general body meeting are binding to  all members. Therefore there is no reason to disbelieve the version of opposite parties.  Opposite parties further submitted that later also time was extended periodically by the Association. But no document is produced to prove this contention. Plea raised by opposite parties are vague that they have failed to indicate circumstances leading to failure to deliver possession in time. The opposite parties ought to have handed over the flat to the owners on or before 31-3-2009 as per the decision taken by the Association. But they did not do so. At the same time they also admitted that the flats are ready for delivery on August 2010. Eventhough there is no stipulation in individual B1 agreement for giving market rent, complainants  except the complainant in CC.71/12, 86/12 and 119/12 are entitled to get compensation for the delay of 16 months. The complainant in  CC.71/12 purchased the flat only in the year 2010. He admitted this fact in his complaint. The Complainant in CC.86/12 and his wife had purchased a flat  as per Sale deed No. 532/11 and 4139/11 of SRO Palakkad. Hence Complainants in           CC.71/12 and CC.86/12 is not entitled to get compensation for delay. Similarly complainant and wife in CC.119/12 purchased flat on 24-11-2010. This complainant  not produced any document to show the delay was caused due to the  act of the opposite parties as  alleged in the complaint.  Hence Complainant in CC.119/12 is also not entitled to get compensation for delay.

Issue No.4

In order to fix the quantum of compensation we have to consider the additional version filed by the opposite parties. They have stated that they are entitled  to get additional amount at the rate of Rs.100/- per  sq.ft as per the decision taken in the general body meeting held by Federal Fort Residential Association from all the complainants except complainants in CC.86/12, 119/12 and 203/12.  Complainants did not file any replications to deny allegations leveled against them. Opposite party submitted that they have the right to get additional amount of Rs.47100/- from complainant in CC.58/12, Rs.136000/- from complainant in CC.68/12, Rs.136000/- from the complainant in CC.69/12, Rs.104700/- from complainant in CC.71/12 and Rs.97100/- from complainant in CC.118/12. Other complainants paid the additional amount to the opposite parties. Opposite party also submitted that eventhough complainant in CC.70/12 and CC.75/12 paid additional amount as   per decision of general body meeting, they were not paid the last installment which was mentioned in the Ext.BI agreement. Both these complainants admitted in their complaint. Hence opposite parties are entitled to get the balance amount from complainants in CC.70/12 and CC.75/12 and additional amounts as stated earlier from the complainants in CC.58/12, 68/12, 69/12, 71/12 and 118/12 .

            In the above circumstances, we are of the view that opposite parties are liable to pay compensation at the rate of Rs.50,000/- each to all complainants except complainants in        CC.71/12, CC.86/12 and 119/12  for the delay caused  and Rs.10,000/- each for reducing the width of path way to all complainants. Opposite parties are also liable to pay compensation of Rs.10,000/- to the complainants in CC.68/12 and CC.69/12 for burden caused due the construction of four additional flats. Moreover all the complainants are entitled to  get compensation of     Rs.10,000/- each for mental agony suffered. 2^nd opposite party filed version stating that he is retired from the partnership firms early on 15-6-2011. Hence 2^nd opposite party is exonerated from the liability. Mr.Anilkumar one among the  opposite parties in CC.203/12 and 119/12 has also filed version stating that he is unnecessary party to the complaint. M/s. Ambas Properties Ltd. also admitted this fact.  Hence 3^rd opposite party is also  exonerated from the liability.

       In the result  all the complaints are partly allowed. 1^st opposite party has the liability to pay cost and compensation to the complainants. We direct the 1^st  opposite party to

1. a) Pay Rs.70,000/- (Rupees Seventy Thousand only) each to the complainants in CC.58/12, 70/12,72/12, 75/12,  118/12 and 203/12.

b)  Pay Rs.80,000/-(Rupees Eighty thousand only) each to complainants in CC.68/12 &

     69/12.

c)  Pay Rs.20,000/-(Rupees Twenty thousand only)  each to complainants in CC.71/12,

     CC.86/12 and CC.119/12 towards compensation. 

2. Pay Rs.5,000/- (Rupees Five thousand only) each to all the complainants as cost of proceedings.
3. Protect the water sump by erecting ornamental barricade which prevents any sorts of stepping over these and to protect the southern side compound wall and
4. Ensure that the motor vehicle does not enter into the children’s play ground and children’s play ground must be  made suitable by leveling the ground.

Direction 1 & 2 shall be complied within a period of one month from the date of receipt of order, failing which all  complainants are  eligible for 9% interest per annum for the whole amount from the date of order, till realization.  1^st Opposite party has the right to adjust the ordered amount towards the arrears due to them by the complainants in CC.58/12, CC.68/12, CC.69/12, CC.70/12, CC.71/12, CC.75/12 and CC.118/12.

Direction 3 & 4  shall be complied within a period of three months  from the date of  receipt of the order,  failing which  all the complainants have the right to get additional compensation of   Rs.25,000/- (Rupees Twenty five thousand only) each from  1^st opposite party.

Pronounced in the open court on this the 11^th day of November  2015.

     Sd/-

                      Shiny.P.R.

                      President   

                          Sd/-

                      Suma.K.P.

                      Member

Appendix

Exhibits marked on the side of complainant in CC-58/2012

Ext.A1  –   Photocopy of registered sale deed No.8090 of 2007 SRO Palakkad

Ext.A2  –   Photocopy of registered sale deed No.3335 of 2009 SRO Palakkad             

Ext.A3  –  Brochure published by opposite party

Ext.A4  -  Receipt dated 01/9/2010 issued by opposite party to the

               complainant

Exhibits marked on the side of complainant in CC-68/2012

Ext.A5 – Photocopy of registered sale deed No.6047 of 2007 SRO Palakkad

Ext.A6 –  Brochure published by opposite party

Exhibits marked on the side of complainant in CC-69/2012

Ext.A7 – Photocopy of registered sale deed No.6042 of 2007 SRO Palakkad 

Ext.A8 – Brochure published by opposite party

Exhibits marked on the side of complainant in CC-75/2012

Ext.A9  –   Photocopy of registered sale deed No.6060 of 2007 SRO Palakkad

Ext.A10  –   Brochure published by opposite party

Exhibits marked on the side of complainant in CC-72/2012

Ext.A11  –   Photocopy of registered sale deed No.6048 of 2007 SRO Palakkad

Ext.A12  –   Brochure published by opposite party

Ext.A13 –    Photocopy of Power of Attorney

Exhibits marked on the side of complainant in CC-86/2012

Ext.A14 – Photocopy of registered sale deed No.532 of 2011 SRO Palakkad

Ext.A15 – Photocopy of registered sale deed No.4139 of 2011 SRO Palakkad

Ext.A16 – Photocopy of Brochure published by opposite party

Ext.A17 – Photocopy of Power of Attorney

Exhibits marked on the side of complainant in CC-118/2012

Ext.A18 – Photocopy of registered sale deed No.8081 of 2007 SRO Palakkad

Ext.A19 – Photocopy of registered sale deed No.9176 of 2008 SRO Palakkad

Ext.A20 – Photocopy of Brochure

Ext.A21 –  Photocopy of Power of Attorney

Exhibits marked on the side of complainant in CC-71/2012

Ext.A22 –    Power of Attorney

Ext.A23  –   Photocopy of registered sale deed No.8088 of 2007 SRO Palakkad

Ext.A24  –   Brochure published by opposite party

 Exhibits marked on the side of complainant in CC-203/2012

Ext.A25 –  Photocopy of memorandum of understanding

Ext.A26 – Photocopy of registered sale deed No.5898 of 2007 SRO Palakkad

Exhibits marked on the side of complainant in CC-119/2012

Ext.A27 – Photocopy of Agreement dated 15/3/2010

Ext.A28 –  Photocopy of registered sale deed No.8470 of 2010 SRO Palakkad

Ext.A29 – Photocopy of Brochure

Ext.A30 – Photocopy of Power of Attorney

Ext.A31 –  Photocopy of letter addressed by the complainant to opposite party

               dated 2/7/11

Ext.A32 –  Photocopy of letter addressed by the complainant to opposite party

                dated 16/12/2011

Ext.A33 – Photocopy of email addressed by the complainant to the opposite

               Party dated 3/2/2012.

Exhibits marked on the side of complainant in CC-70/2012

Ext.A34 –  Photocopy of registered sale deed No.6056 of 2007 SRO Palakkad

Ext.A35 –  Brochure published by opposite party

Ext.A36 – Photostat copy of Notice dated 12/2/2015 of Secretary, Palakkad

               Municipality.

Ext.A37 – Proceedings of Secretary, Palakkad Municipality dated 30/3/2015

Exhibits marked on the side of Opposite parties in CC-58/12

Ext.B1  -  Photocopy of Agreement for land & Construction dated 28/3/2007

Exhibits marked on the side of Opposite parties in CC-68/12

Ext.B1  -  Photocopy of Agreement for land & Construction dated 28/3/2007

Exhibits marked on the side of Opposite parties in CC-69/12

Ext.B1  -  Photocopy of Agreement for land & Construction dated 28/3/2007

Exhibits marked on the side of Opposite parties in CC-70/12

Ext.B1  -  Photocopy of Agreement for land & Construction dated 27/3/2007

Exhibits marked on the side of Opposite parties in CC-71/12

Ext.B1  -  Photocopy of Agreement for land & Construction dated 25/6/2007

Exhibits marked on the side of Opposite parties in CC-72/12

Ext.B1  -  Photocopy of Agreement for land & Construction dated 28/3/2007

Exhibits marked on the side of Opposite parties in CC-75/12

Ext.B1  -  Photocopy of Agreement for land & Construction dated 28/3/2007

Exhibits marked on the side of Opposite parties in CC-86/12

Ext.B1  -   NIL

Exhibits marked on the side of Opposite parties in CC-118/12

Ext.B1  -  Photocopy of Agreement for land & Construction dated 28/3/2007

Exhibits marked on the side of Opposite parties in CC-119/12

Ext.B1  -  Photocopy of Agreement for sale dated 15/3/2010

Exhibits marked on the side of Opposite parties in CC-203/12

Ext.B1 – Photocopy of  Agreement for   construction

Ext.B2 – Photocopy of the plaintiff in OS.402/12 Munsiff Court Palakkad

Ext.B3 –  Photocopy of Resolution of General Body meeting of Federal Fort Residents Association dated 9/12/2008.

Ext B4 series.- Photocopy of Building  Plan  (3 Nos)

Witness examined in CC-58-2012

PW1 – Sunil Balagopalan

Witness examined in CC-68/2012

PW2 – Raji Ramachandran

Witness examined in CC-69/2012

PW3 – A.Ramachandran

Witness examined in CC-70/2012

PW11 – Padmanabhan.V

Witness examined in CC-71/2012

PW8 – V.C.Krishnadas

Witness examined in CC-72/2012

PW5 – K.Kunhilakshmi

Witness examined in CC-75/2012

PW4 – Venugopal.P.E

Witness examined in CC-86/2012

PW6 – Govindankutty Nair

Witness examined in CC-118/2012

PW7 –Rugmini.P

Witness examined in CC-119/2012

PW10 –Kesavankutty.M

Witness examined in CC-203/2012

PW9 –Ravikumar 

Witness examined on the side of Opposite party in CC-203/2012

DW1 – Gopinathan Nair

DW2 – B.Nandakumar

DW3 – Muraleedharan

Commission Report

C1  series – A.M.Sheriff

Cost

Rs.5,000/-  each to all complainants  as cost of the proceedings.